Summary:
Posing as a Florida Power and Light employee, Ferguson was let into a home by Margaret Wooden to check the electrical outlets. After looking in several rooms, Ferguson drew a gun, then bound and blindfolded Wooden. Ferguson let two accomplices, Marvin Francois and Beauford White, into the home to continue searching for drugs and money. Two hours later, the owner of the home, Livingston Stocker, and five friends returned home and were bound, blindfolded, and searched by Ferguson, Francois, and White. The seven bound and blindfolded people were then moved from the living room to a bedroom. Later, Wooden’s boyfriend, Michael Miller, entered the house and was bound, blindfolded, and searched. Miller and Wooden were moved to another bedroom together and the other six men were moved to the living room. At some point in the evening, Marvin Francois’ mask fell off and his face was revealed to the others. Wooden heard shots coming from the living room, where Francois was shooting the men. Ferguson placed a pillow over Wooden’s head and then shot her. Not fatally wounded, Wooden saw Miller being shot and heard Ferguson run from the room. When the police arrived, they found six dead bodies, all of which had their hands tied behind their back and had been shot in the back of the head. Johnnie Hall survived a shotgun blast to the head and testified regarding the execution of the other men in the living room.

Accomplice White was convicted on all counts and was sentenced to death despite a jury's recommendation for life. He was executed on in 1987. Accomplice Francois was convicted on all counts and was also sentenced to death. He was executed in 1985. Accomplice Adolphus Archie, who drove the car used to drop off and pick up the shooters, pled guilty to Second-Degree Murder and was sentenced to twenty years imprisonment.

Brian Glenfeld and Belinda Worley, both 17 years old, were last seen around 9:00 p.m. on Sunday, 01/08/78. The two were supposed to meet friends at an ice cream parlor, but their bodies were discovered the next morning in a wooded area. Glenfeld’s body was behind the wheel of a car, with gunshot wounds to his chest, arm, and head. Worley’s body was found in a nearby dense growth, where she had been raped and then shot in the head. Several pieces of Worley’s jewelry were missing and cash was missing from Glenfeld’s wallet. Three months later, Ferguson was arrested at his apartment pursuant to a warrant for unlawful flight to avoid prosecution. At the time of the arrest, Ferguson was under indictment for the six murders that occurred in 1977. After a consent search of the apartment, in which a gun was recovered that was similar to the gun used to kill Glenfeld and Worley, Ferguson admitted to shooting the couple.

Final / Special Meal:
Ferguson chose to eat the same food other prisoners were being served as his final meal: A meat and vegetable patty, white bread, stewed tomatoes, potato salad, carrots and iced tea.

Final Words:
"I just want everyone to know that I am the prince of God and will rise again."

When John Errol Ferguson was 21 years old, he stole a deputy’s gun and was about to shoot when the deputy fished another gun from his boot, shooting Ferguson four times — including a round to the head. In 1975, Ferguson was diagnosed as homicidal and dangerous by court psychiatrists when he was acquitted of six robberies and two assault charges on a plea of insanity. A court-appointed psychiatrist said he was "dangerous to himself and others, homicidal and should not be released under any circumstances." He was was sent to the Florida mental hospital, from which he later escaped.

In May of 1977, police found an elderly couple from St. Petersburg — in town for a funeral — shot to death at Miami’s Gold Dust motel. The couple had been tied up, robbed, brutally beaten and shot, execution-style.

On 27 July 1977, Ferguson, posing as a Florida Power and Light employee, was let into a home by Margaret Wooden on a ruse to check the electrical outlets. After looking in several rooms, Ferguson drew a gun, then bound and blindfolded Margaret. Ferguson let two men, Marvin Francois and Beauford White, into the home to continue searching for drugs and money. Two hours later, the owner of the home, Livingston Stocker, and five friends returned home and were bound, blindfolded, and searched by Ferguson, Francois, and White. The seven bound and blindfolded people were then moved from the living room to a bedroom. Later, Wooden’s boyfriend, Michael Miller, entered the house and was bound, blindfolded, and searched. Miller and Wooden were moved to another bedroom together and the other six men were moved to the living room. At some point in the evening, Marvin Francois’ mask fell off and his face was revealed to the others. Wooden heard shots coming from the living room, where Francois was shooting the men. Ferguson placed a pillow over Wooden’s head and then shot her. Not fatally wounded, Wooden saw Miller being shot and heard Ferguson run from the room. She managed to escape and ran to a neighbor's house to call the police. When the police arrived, they found six dead bodies, all of which had their hands tied behind their back and had been shot in the back of the head. Johnnie Hall survived a shotgun blast to the head and testified regarding the execution of the other men in the living room.

Ferguson was also convicted of attempted murder in the robbery of another couple at a lover's lane. On October 30, he shot and wounded two teenagers when they refused to unlock the car door. The couple drove off, wounded but alive. The next day, he raped a woman. He was also suspected but not charged with the brutal robbery slaying of an elderly St. Petersburg couple at a Miami motel on Biscayne Boulevard. They were in town to attend a funeral. The same gun was used in that crime.

On the evening of 8 January 1978, Brian Glenfeldt and Belinda Worley, both seventeen, left a Youth-for-Christ meeting in Hialeah, Florida. They were supposed to meet friends at an ice cream parlor, but never arrived. The next morning, two passersby discovered their bodies in a nearby wooded area. Glenfeldt had been killed by a bullet to the head and also had been shot in the chest and arm. Worley was found several hundred yards away under a dense growth. All of her clothes, except for her jeans, were next to her body, and she had been shot in the back of the head. An autopsy revealed that she had been raped. At trial, there was testimony that she had been wearing jewelry, but none was found with the bodies. The cash from Glenfeldt’s wallet, which was found in Worley’s purse near her body, also had been removed.

On 5 April 1978, police arrested Ferguson at his apartment pursuant to a warrant for unlawful flight to avoid prosecution in connection with the Carol City murders. At the time of his arrest, police found in his possession a .357 magnum, which was capable of firing .38 caliber bullets, the same kind used to kill Glenfeldt and Worley. The gun was registered to Stocker, one of the victims in the Carol City murders. At some point after Ferguson’s arrest, he confessed to killing “the two kids,” i.e., Glenfeldt and Worley.

Ferguson, White, and Francois were indicted together as coconspirators, but each was tried separately. White was convicted on all counts of the indictment. The jury recommended life imprisonment, but the judge sentenced him to death. White was executed on 08/28/87. Francois was convicted on all counts of the indictment. The jury recommended death sentences, and he was sentenced to death. Francois was executed on 05/29/85. Adolphus Archie, who drove the car used to drop off and pick up the shooters, pled guilty to Second-Degree Murder and was sentenced to twenty years imprisonment.

(Reuters) - A Florida man who has spent 35 years on death row for killing eight people was executed on Monday despite a last-minute appeal by lawyers claiming he was insane.
John Errol Ferguson, 65, who was convicted of first-degree murder and sentenced to death in 1978 for a pair of killing sprees, was pronounced dead at 6:17 p.m. EDT from lethal injection, said Misty Cash, a spokeswoman for the Florida Department of Corrections.

Hours before his execution, the U.S. Supreme Court denied Ferguson a stay of execution. The National Alliance on Mental Illness (NAMI) filed an amicus brief last week, along with three Florida mental health organizations, asking the top court to halt the execution, arguing Ferguson had a long history of severe mental illness.
The brief argued Ferguson's execution would violate the Eighth Amendment to the U.S. Constitution requiring an individual to have a rational understanding of why he is being put to death and the effect of the death penalty.
"Mr. Ferguson is insane and incompetent for execution by any measure," his attorney, Christopher Handman, said in a statement after the court's decision on Monday.
"He has a fixed delusion that he is the 'Prince of God' who cannot be killed and will rise up after his execution to fight alongside Jesus and save America from a communist plot," Handman said. He has no rational understanding of the reason for his execution or the effect the death penalty will have upon him."

In his last statement, Ferguson uttered, "I just want everyone to know, I am the 'Prince of God' and I will rise again," Cash said.

In July 1977, Ferguson fatally shot six people execution-style during a drug-related home robbery in a northern Miami suburb. Six months later, he killed two teenagers after they left a church meeting.
State psychiatrists and other medical professionals have diagnosed Ferguson as a paranoid schizophrenic with a long history of mental illness, according to his defense team.
Courts, however, have repeatedly rejected claims he was too mentally ill to be executed.

Florida Governor Rick Scott signed Ferguson's death warrant in September, but a few weeks later delayed the execution while a team of physicians met to decide whether Ferguson was mentally competent.
After a 90-minute examination and brief consultation a panel of psychiatrists determined that Ferguson was sane. A state circuit judge agreed in a ruling.

The U.S. 11th Circuit Court of Appeals in May rejected his appeal, ruling that Ferguson was mentally competent.
"That most people would characterize Ferguson's Prince-of-God belief, in the vernacular, as 'crazy' does not mean that someone who holds that belief is not competent to be executed," the appeals court found.

STARKE -- After a life of bloodshed on the streets of Miami-Dade, then 35 years lingering on Death Row, Miami murderer John Errol Ferguson’s eyes darted to the execution supervisor looming over him.
“I just want everyone to know that I am the Prince of God and I will rise again,” Ferguson mumbled.
Then, the jowly and grayed 65-year-old rustled his feet underneath the white sheet of the gurney, lifted his head and peered intently at the witness window of the death chamber. At 6:01 p.m. Monday, the lethal drugs pumped through his veins, his head rested down, his mouth gasped and life slowly and quietly slipped away.
Ferguson, a killer of eight and at one time responsible for the largest mass slaughter in Miami-Dade history, was pronounced dead 6:17 p.m.

His execution caps a legacy of violence dating back to 1977, as well as a high-profile legal fight over whether Ferguson’s longtime schizophrenia and stated belief that he is the “Prince of God” made his execution a cruel and unusual punishment.
Michael Worley, whose 17-year-old sister Belinda Worley was raped and shot to death in 1978, said he believed Ferguson’s insanity was “fabricated and coached” even until the end.
“Thank goodness justice finally prevailed and he was finally executed,” Worley told the Miami Herald on Monday night. “I think he got off easy compared to what he did to the victims.”

Ferguson’s lawyers, who witnessed Monday’s execution, had fought for years to spare Ferguson, saying the man had a 40-year history of mental illness dating back to well before the murders.
Lawyer Christopher Handman criticized the U.S. Supreme Court, which on Monday afternoon denied a last-minute appeal to stay the execution.
“He has a fixed delusion that he is the ‘Prince of God’ who cannot be killed and will rise up after his execution to fight alongside Jesus and save America from a communist plot,” Handman said. “He has no rational understanding of the reason for his execution or the effect the death penalty will have upon him.”

Ferguson was the fifth Florida Death Row inmate to be executed since December.
In May, Gov. Rick Scott also signed a death warrant for Miami killer Marshall Lee Gore, but his execution has twice been stayed as his lawyers seek to halt it based on claims he, too, is mentally ill and should not executed. In recent months, Scott has accelerated the pace of death warrants.
Ferguson was one of the state’s longest serving Death Row inmates.

Prosecutors convicted Ferguson of the July 1977 shotgun murders of six people in Carol City during a home-invasion robbery. At the time, it was considered the worst mass murder in Miami-Dade history.
The dead: Livingstone Stocker, 33; Michael Miller, 24; Henry Clayton, 35; John Holmes, 26; Gilbert Williams, 37, and Charles Cesar Stinson, 35. Two survived: Johnnie Hall, 45, and Margaret Wooden, 24.

Ferguson was also convicted separately of murdering Worley and Glenfeldt, both 17-year-old Hialeah High students, in January 1978. The two had gone for ice cream, then parked at a field known as a popular lover’s lane.
Police said Ferguson tried robbing the couple, shooting Glenfeldt behind the wheel of his mother’s 1974 Pontiac LeMans, while Worley’s body was discovered a quarter-mile away; she had been raped and shot.
Michael Worley, who was 13 when his sister was killed, choked up when remembering her Monday night: “She was a good girl. I looked up to her. She had a lot of plans for life and she didn’t get a chance to see them through. He took it away from her.” Worley, who now lives in Broward County, did not attended the execution of his sister’s killer.
Ferguson was also convicted of attempted murder in the robbery of another couple at a lover’s lane. And he was a suspect, but never charged, with the robbery and killing of an elderly couple at a Miami motel.
Monday’s execution date came 10 months after Ferguson was originally slated to die by lethal injection at Florida State Prison in Starke.
After months of legal wrangling, the U.S. 11th Circuit Court of Appeals in May rejected his appeal, upholding a trial judge’s ruling that Ferguson was competent to be executed.
“That most people would characterize Ferguson’s Prince-of-God belief, in the vernacular, as ‘crazy’ does not mean that someone who holds that belief is not competent to be executed,” according to the federal appeals court’s 65-page opinion.
His lawyers insisted that the state courts and the federal appeals court applied the wrong legal standard, set by the U.S. Supreme Court years ago, in determining Ferguson’s competency.
The federal appeals court’s ruling set the stage for Monday’s new execution date.
Just hours before he was killed, Ferguson dined on standard inmate fare: a meat patty with white bread, steamed tomatoes, potato salad, diced carrots and iced tea.
The convicted killer also met with two of his attorneys, Handman and Patricia Brannon, as well as a spiritual advisor: Sister Marina Aranzabal, according to a corrections spokeswoman.
Several unidentified relatives of the dead sat in the front-row of the death chamber, which has a one-way window facing Ferguson.
In the stuffy and eerie silence, the relatives sat stone-faced until a mocha-colored curtain rose to reveal Ferguson, strapped into the gurney, IVs discretely inserted into veins on each arm.
They sat stone faced but clearly apprehensive. One woman clasped her hands, prayer-like, resting them just below her nose as she watched. Next to her, a man cupped his mouth and chin, tapping his fingers on his lips.
As the minutes ticked away, the drugs took effect.
At 6:17 p.m., a doctor walked in, slid Ferguson’s eyelids up with his fingers and shined a flashlight into his pupils. No response. A stethoscope confirmed: Ferguson was dead.

"After 30 years on Death Row, Miami mass killer executed," by David Ovalle. (6:39 p.m. EDT, August 5, 2013)

The Miami Herald — John Errol Ferguson, 65, was executed Monday evening after serving three decades on Florida’s death row for eight Miami-Dade murders in 1977 and 1978, the Miami Herald reported.
His last words were unintelligible to witnesses; he was declared dead at 6:17 p.m.

(CBS/AP) STARKE, Fla. - John Errol Ferguson, a mass murderer from Miami-Dade County, was executed by lethal injection at Florida State Prison 6 p.m. ET Monday.
The 65-year-old was convicted of killing eight people in South Florida in two separate incidents in the 1970s..

Ferguson made a brief final statement before 25 witnesses before his execution.
"I just want everyone to know that I am the prince of God and will rise again," he said calmly, according to The Associated Press.

In the first incident, Ferguson gained entry into a Carol City home on July 27, 1977, by posing as a utility employee. He then bound and blindfolded Margaret Wooden, the woman who let him in, and also let two accomplices into the home. In time, seven more people - Henry Clayton, Johnnie Hall, Randolph Holmes, Michael Miller, Charles Stinson, Livingston Stocker and Gilbert Williams - came to the house and were bound and blindfolded.
Ferguson placed a pillow over Wooden's head and shot her, but she survived. The other seven men were shot execution-style in the back of the head. Hall survived a shotgun blast to the head, but the rest of the men died. Both of Ferguson's accomplices were executed in the 1980s.

While under indictment for the Carol City murders, Ferguson murdered two Hialeah teenagers who were on their way to a church meeting in 1978. Posing as a police officer, Ferguson confronted Brian Glenfeldt and Belinda Worley, both 17 years old. Ferguson shot Glenfeldt in the back of the head, the chest and the arm. Ferguson then took Worley into the woods, raped her and shot her in the back of the head. Ferguson also took the teenagers' money and jewelry.

Gov. Rick Scott initially signed Ferguson's death warrant last fall, scheduling him to die Oct. 16, 2012. But appeals at the state and federal level kept the execution from going forward. Ferguson's lawyers have filed numerous appeals in several courts. They contend their client is mentally ill and has suffered from schizophrenia since he was a teen. Ferguson's lawyers say several psychiatrists have ruled over the years that Ferguson is mentally ill. Most of those evaluations came when Ferguson was in a state mental hospital in the 1970s. If Ferguson's execution is carried out, he will be the fifth death row inmate in Florida to be executed since December, the Miami Herald reports.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

Circumstances of Offense: On 07/27/77, John Ferguson, posing as a Florida Power and Light employee, was let into a home by Margaret Wooden to check the electrical outlets. After looking in several rooms, Ferguson drew a gun, then bound and blindfolded Wooden. Ferguson let two men, Marvin Francois and Beauford White, into the home to continue searching for drugs and money. Two hours later, the owner of the home, Livingston Stocker, and five friends returned home and were bound, blindfolded, and searched by Ferguson, Francois, and White. The seven bound and blindfolded people were then moved from the living room to a bedroom.

Later, Wooden’s boyfriend, Michael Miller, entered the house and was bound, blindfolded, and searched. Miller and Wooden were moved to another bedroom together and the other six men were moved to the living room. At some point in the evening, Marvin Francois’ mask fell off and his face was revealed to the others. Wooden heard shots coming from the living room, where Francois was shooting the men. Ferguson placed a pillow over Wooden’s head and then shot her. Not fatally wounded, Wooden saw Miller being shot and heard Ferguson run from the room.

When the police arrived, they found six dead bodies, all of which had their hands tied behind their back and had been shot in the back of the head. Johnnie Hall survived a shotgun blast to the head and testified regarding the execution of the other men in the living room.

Codefendant Information: Ferguson, White, and Francois were indicted together as coconspirators, but each was tried separately. White was convicted on all counts of the indictment. The jury recommended life imprisonment, but the judge sentenced him to death. White was executed on 08/28/87. Francois was convicted on all counts of the indictment. The jury recommended death sentences, and he was sentenced to death. Francois was executed on 05/29/85. Adolphus Archie, who drove the car used to drop off and pick up the shooters, pled guilty to Second-Degree Murder and was sentenced to twenty years imprisonment.

Circumstances of Offense: Brian Glenfeld and Belinda Worley, both seventeen years old, were last seen around 9:00 p.m. on Sunday, 01/08/78. The two were supposed to meet friends at an ice cream parlor, but their bodies were discovered the next morning in a wooded area. Glenfeld’s body was behind the wheel of a car, with gunshot wounds to his chest, arm, and head. Worley’s body was found in a nearby dense growth, where she had been raped and then shot in the head. Several pieces of Worley’s jewelry were missing and cash was missing from Glenfeld’s wallet.

On 04/05/78, John Ferguson was arrested at his apartment pursuant to a warrant for unlawful flight to avoid prosecution. At the time of the arrest, Ferguson was under indictment for the six murders that occurred on 07/27/77 (case # 77-28650-D). After a consent search of the apartment, in which a gun was recovered that was similar to the gun used to kill Glenfeld and Worley, Ferguson admitted to shooting the couple.

At the time of each of the murders, Ferguson was on probation, having already served an eighteen month prison sentence for a 1976 conviction for Resisting a Police Officer with Violence. Ferguson’s prior criminal history also included a 1971 Robbery conviction and a 1965 Assault with Intent to Rape conviction, for which Ferguson was sentenced to ten years imprisonment.

Factors Contributing to the Delay in Imposition of Sentence: The delay in this case appears to arise from the resentencing of Ferguson and from the pending Federal Habeas Petition that was filed on 03/20/95.

Case Information:

Ferguson filed a Direct Appeal (FSC# 55,137; CC# 77-28650-D) with the Florida Supreme Court on 09/25/78, citing the following errors: unconstitutionality of the death penalty, failure to provide written statements of support for the death penalty in the case, improper prosecutorial comments during closing arguments, and admission of prejudicial statements about Ferguson’s prior incarceration. On 07/15/82, the FSC affirmed the convictions, but vacated the death sentences and remanded to the trial court for a new sentencing hearing, finding that the trial court improperly weighed the aggravating and mitigating circumstances in the case.

Ferguson filed a Direct Appeal (FSC# 55,498; CC# 78-05428) with the Florida Supreme Court on 11/13/78, citing the following errors: unconstitutionality of the death penalty, failure to suppress evidence, admission of evidence of the other murders, and improper prosecutorial comments during closing arguments. On 07/15/82, the FSC affirmed the convictions, but vacated the death sentences and remanded to the trial court for a new sentencing hearing, finding that the trial court improperly weighed the mitigating circumstances in the case.

Ferguson was resentenced to death on 05/27/83.

Ferguson filed a Direct Appeal with the Florida Supreme Court on 10/10/83, citing the following errors: failure to allow an evidentiary hearing during resentencing; improper finding of the cold, calculated, and premeditated murder aggravating circumstance; and consideration of evidence not in the trial record. On 06/27/85, the FSC affirmed the death sentence.

Ferguson filed a 3.850 Motion with the Circuit Court on 10/15/87, which was denied on 06/19/90.

Ferguson filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court on 10/01/92, citing the following errors: a different sentencing judge upon resentencing; vague jury instructions regarding the heinous, atrocious, or cruel murder aggravating circumstances; failure to grant a defense motion to stop giving Ferguson anti-psychotic drugs; and ineffective assistance of appellate counsel. The FSC denied the Petition on 12/09/93.

Ferguson filed a Petition for Writ of Habeas Corpus with the U.S. District Court, Southern District on 03/20/95. On 05/15/00, the USDC administratively closed the case pending resolution of state proceedings. On 08/07/01, the case was reopened, and on 11/02/01, Ferguson filed a supplemental brief with the court. On 09/26/03, Ferguson amended the Petition. The petition was denied on 05/19/05.

Ferguson filed a 3.850 Motion with the Circuit Court on 07/10/99, which was denied on 08/18/99.

Ferguson filed a 3.850 Motion Appeal with the Florida Supreme Court on 01/27/00, citing eleven issues, most of which focused on claims of ineffective assistance of counsel and withholding of evidence by the State. On 05/10/01, the FSC affirmed the denial of the 3.850 Motion.

Ferguson filed a Petition for Writ of Habeas Corpus Appeal with the U.S. Court of Appeals, 11th Circuit on 06/17/05. The District Courts denial of the Petition was affirmed by the U.S. Court of Appeals on 08/26/09.

Ferguson filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 03/31/10. The petition was denied on 06/01/10.

Ferguson v. State, 417 So.2d 631 (Fla. App. 1982). (Direct Appeal)

Defendant was convicted in the Circuit Court, Dade County, Richard S. Fuller, J., of first-degree murder, involuntary sexual battery, robbery, attempted robbery, unlawful possession of a firearm while engaged in a criminal offense and possession of a firearm by a convicted felon and sentenced to death, and he appealed. The Supreme Court, Adkins, J., held that: (1) the Florida death penalty statutes are constitutional; (2) statements made by the defendant after he knowingly and voluntarily waived his right to have counsel present were admissible; (3) evidence supported the conclusion that the woman who had been living in the defendant's apartment had the authority to consent to a warrantless search; (4) evidence supported determinations that the defendant was sane at the time of the offense and that he was competent to stand trial; (5) testimony that the defendant had been present at the scene of a separate multiple-murder incident was admissible as being relevant to identity; (6) the defendant was not a “person under sentence of imprisonment” at the time of the offense as that term is used in the aggravating circumstance; and (7) the sentencing judge applied the wrong standard in determining the presence or absence of two mitigating circumstances related to emotional distress. Judgment of conviction affirmed; death sentence vacated and cause remanded. Sundberg, J., concurred in the result only. Boyd, J., concurred in part and dissented in part with an opinion.

ADKINS, Justice.

Appellant, John Errol Ferguson, was found guilty on two counts of first-degree murder, one count of involuntary sexual battery, one count of robbery, one count of attempted robbery, one count of unlawful possession of a firearm while engaged in a criminal offense, and one count of possession of a firearm by a convicted felon. He now appeals his convictions on the above and the resulting sentences of death and imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Brian Glenfeld and Belinda Worley were last seen leaving a Youth for Christ meeting around 9:00 p. m. on Sunday, January 8, 1978. The two seventeen-year-olds were supposed to meet friends at an ice cream parlor. The next morning their bodies were discovered in a wooded area by two passersby.
Brian's body was behind the wheel of the car. He'd been shot in the chest and arm. A bullet to the head had killed him. Belinda's body was several hundred yards away in a dense growth. All she had on were her jeans; her other clothes were next to her body. She'd been shot in the back of the head. An autopsy indicated she'd been raped.
Brian's father testified that Belinda was wearing two rings, a gold bracelet and a pair of earrings when she and Brian left on Sunday evening. None of the jewelry was found with the bodies. Belinda's earlobe was torn where an earring had been taken. Brian's empty wallet was found in Belinda's purse near her body. His father had seen both the wallet and some cash in Brian's possession the previous evening.

On April 5, 1978, the defendant was arrested at his apartment pursuant to a warrant for unlawful flight to avoid prosecution; he was under indictment for another multiple-murder, the so-called Carol City murders. The defendant was read his Miranda rights each time he was questioned. He signed a consent to search form and allowed the officers to search the apartment. His roommate, Virginia Polk, also consented to the search. After the search, which produced probable evidence in another robbery, the defendant confessed to killing the “two kids.” At the time of his arrest he had in his possession a .357 magnum capable of firing .38 caliber bullets like those which killed Brian and Belinda.

The gun was registered to Livingston Stocker, a victim of the Carol City murders. Margaret Wooden, a survivor of that incident, testified that the defendant had been in Stocker's Carol City house on July 27, 1977, the night he was murdered. The defendant was convicted on two counts of first degree murder. The jury recommended the death penalty and the judge concurred in imposing the death sentence.

We reject the constitutional challenges to the death penalty. It is neither cruel and unusual punishment, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), nor a violation of due process or equal protection. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 918 (1976).
The trial court denied defendant's pre-trial motions to suppress statements made on April 5, 1978, the day of his arrest. Evidence at the suppression hearing showed that defendant was represented by counsel as of about 3:00 p. m. the day he was taken into custody. Defendant's attorney visited his client and claimed that he advised the officers involved that he didn't want anyone talking to his client unless he was present. This was contradicted by the state's evidence and the trial court found that such communication did not take place. The defendant was questioned at least twice after this and admitted the crimes without his attorney being present.

The trial judge in the case before us specifically found that the defendant knowingly and voluntarily waived his Fifth Amendment right. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). The waiver is effective even though the defendant is represented by counsel and the officers are aware of that fact. United States v. Brown, 569 F.2d 236 (5th Cir. 1978); United States v. Vasquez, 476 F.2d 730 (5th Cir. 1973). The defendant in this case was questioned by three different officers investigating three separate incidents. Each time he was approached, the defendant was advised of his rights and clearly consented to talking without an attorney. When he finally did ask to speak with his lawyer, all questions ceased. Michigan v. Moseley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The statements were properly admitted into evidence.

The trial court also admitted physical evidence taken from defendant's apartment on the day of his arrest. The detective who searched the apartment did so after obtaining consent from a woman who had been living with the defendant. The test for a valid third-party consent to a warrantless search is whether the third party has joint control of the premises. United States v. Matlock, 415 U.S. 164, 98 S.Ct. 218, 54 L.Ed.2d 152 (1974); Silva v. State, 344 So.2d 559 (Fla.1977). In this instance the entire living space, including closets, of the one-bedroom apartment had been shared by the defendant with the third party. At the suppression hearing there was conflicting evidence as to whether the woman had ceased to reside in the apartment a few days earlier. The trial court resolved this question against the defendant, finding that the third party had joint access and control at the time she gave permission. There is nothing in the record to overcome the presumption of correctness with which that finding reaches this Court. State v. Nova, 361 So.2d 411 (Fla.1978).
Having found a valid third-party consent, we need not reach the validity of the defendant's consent in signing a consent to search form. The evidence obtained at the apartment was not taken in violation of defendant's constitutional rights.

Yet another pre-trial motion was denied by the trial court; this alleged that the defendant was insane at the time of the offense and incompetent to stand trial at all times thereafter. The Florida standard for sanity at the time of the offense is the ability to distinguish right and wrong. Witt v. State; Wheeler v. State, 344 So.2d 244 (Fla.1977), cert. denied, 440 U.S. 924 (1979). The test for competency to stand trial is whether a defendant has sufficient present ability to consult with and aid his attorney in the preparation of a defense with a reasonable degree of understanding. Although the medical evidence was conflicting, there was adequate testimony to support the trial judge's finding that defendant was competent to stand trial.
Byrd v. State, 297 So.2d 22 (Fla.1974); Fowler v. State, 255 So.2d 513 (Fla.1971), later appeal, 263 So.2d 202 (Fla.1972). Defendant's sanity at the time of the offense was a factual issue determined adversely to him by the jury's verdict. The evidence is sufficient to sustain this finding by the jury.

During the trial, Margaret Wooden was allowed to testify over defendant's objection that the defendant had been present at the scene of the Carol City murders. The trial court properly denied the defense motion for a mistrial since this evidence tended to establish the defendant's identity as perpetrator of the crime. Dean v. State, 277 So.2d 13 (Fla.1973); Ashley v. State, 265 So.2d 685 (Fla.1972); Williams v. State, 110 So.2d 654 (Fla.1959). One of the crucial pieces of evidence in this case was the .357 magnum revolver found in defendant's possession upon his arrest. Since nearly four months had elapsed between the date of the crime and the date of arrest, the point at which defendant obtained possession of the weapon was obviously important to the state's case. Another witness testified he'd been present in Stocker's house on July 27, 1977, when a similar .357 magnum was taken from the bedroom. Margaret Wooden was the only person who could place the defendant in Stocker's house on that date, some five and one-half months prior to the day the two teenagers were killed. Review of the testimony shows that both the court and the prosecutor made every effort to avoid prejudicing the defendant by referring to the Carol City homicides. The record supports the admission of the evidence as relevant to identity.

The defendant also contends that the prosecutor improperly commented in closing argument on the defendant's failure to testify:
[S]o there is a lot of reasons why that glitter was on that blue shirt and you'll also remember John Ferguson said, excuse me, Virginia Polk said that John Ferguson washed the clothes....
Taken in context, the prosecutor obviously said the defendant's name when he meant to say Virginia Polk. He immediately corrected the error. This is not an example of resort to improper methods to obtain convictions as suggested by the defendant. Rolle v. State, 268 So.2d 541 (Fla. 3d DCA 1972). The trial court acted within its discretion in denying the defendant's motion for mistrial. Johnsen v. State, 332 So.2d 69 (Fla.1976).

At the close of the state's case the defendant moved for a judgment of acquittal on the two counts of robbery. The court denied the motions and the jury found defendant guilty of robbery of Brian and attempted robbery of Belinda. In circumstantial evidence cases the evidence must not only be consistent with guilt but also be inconsistent with any reasonable hypothesis of innocence. Davis v. State, 90 So.2d 629 (Fla.1956). The crux of the matter is that all the state could show was that the victims had valuables on their persons before they were killed and that the jewelry was missing when the bodies were discovered. The defense argues that since the bodies were in the wooded area overnight, anyone passing by could have stolen the money and jewelry. We agree with the state that this is not a reasonable hypothesis of innocence: there was evidence that the jewelry was taken with some degree of violence; it rained very hard that night; and the bodies were found just a few hours after sunrise. See People v. Hubler, 102 Cal.App.2d 689, 228 P.2d 37 (2d Dist. 1951).

The defendant's final point on appeal concerns the actual execution of the death sentence. Essentially he argues that he has a First Amendment right to have his execution televised. We need not reach the merits of this argument inasmuch as the claim is not properly before this Court. The execution of the death sentence is regulated by statute and carried out by the Department of Corrections, a part of the executive branch of government. § 922.10 and . 11, Fla.Stat. (Supp.1978). The defendant raised this issue in a post trial motion before the trial court. Other than specifically described post trial motions, there is no jurisdictional basis for that court to act in this cause after the imposition of sentence. See, e.g., Fla.R.Crim.P. 3.700; 3.810; and 3.850.

The trial court made written findings of fact in support of the death sentence. The finding, as an aggravating circumstance, that the defendant was under a sentence of imprisonment at the time that he committed the crimes for which he was sentenced is improper. At the time of the murders, defendant was serving a two-year period of probation which followed an eighteen-month period of incarceration. He was not confined in prison at the time, nor was he supposed to be. In Peek v. State, 395 So.2d 492 (Fla.1981), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), we held that:
Persons who are under an order of probation and are not at the time of the commission of the capital offense incarcerated or escapees from incarceration do not fall within the phrase “person under sentence of imprisonment” as set forth in section 921.141(5)(a).
Id. at 499. Thus defendant was not a “person under sentence of imprisonment.”

Our negation of said aggravating circumstance would not, however, change the result of this case in the absence of mitigating circumstances. In such cases, a reversal of the death sentence is not necessarily required, as any error that occurred in the consideration of the inapplicable aggravating circumstances was harmless. See Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981); Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 101 S.Ct. 3000, 64 L.Ed.2d 862 (1980).
The trial court also found that the defendant had previously been convicted of three felonies involving the use of threat or violence to some person and that the crime was committed in the commission of a robbery and for the purpose of avoiding or preventing a lawful arrest. In support of the latter, the court observed:
It is obvious that the execution style of terminating the lives of the two victims was the result of a thoughtful plan to make certain that there would be no witnesses to the robberies and/or the involuntary sexual battery committed. This conduct is reflective of a well thought out plan to make certain that this defendant would not be discovered or his identity ever revealed.

The final finding in aggravation was that the crime was especially heinous, atrocious, and cruel:
The facts reveal that the two victims were seated in an automobile and while seated therein a gunshot was fired through the window striking Brian Glenfeld in the arm and chest area. A significant amount of bleeding followed and this victim's blood was found throughout many areas of the front of the automobile as well as on the clothing of Belinda Worley. Following the shooting, the female victim ran many hundreds of feet from the car in an attempt to allude [sic] the defendant and was finally overtaken in some rather dense overgrowth and trees. She was subjected to many physical abuses by this defendant, including but not limited to, sexual penetration of her vagina and anus. The discovery of embedded dirt in her fingers, on her torso both front and back and in many areas within her mouth and the findings of hemorrhaging around her vagina and anal cavity would indicate that she put up a significant struggle and suffered substantially during the perpetration of these indignities upon her body. Expert testimony indicates that she was a virgin at the time of the occur[r]ence of this crime. The position of her body and the location of the wounds on her head would indicate that she was in a kneeling position at the time she was shot through the top of the head. She was left in a partially nude condition in the area where the crime was committed to be thereafter fed upon by insects and other predators. Physical evidence would substantiate that following the attack upon Belinda Worley the defendant went back to the car and shot Brian Glenfeld through the head. See § 921.141(5), Fla.Stat. (1977).

The only possible mitigating circumstance involved the defendant's mental state and his ability to appreciate the criminality of his conduct. § 921.141(6)(b) and (f), Fla.Stat. (1977). In rejecting this as a mitigating factor the trial court said:
At the time of an appearance before the Court on another matter wherein a plea of not guilty by reason of insanity was entered the Court appointed three disinterested psychiatrists; Drs., Harry Graff, Charles Mutter and Albert Jaslow. Subsequent thereto, Dr. Norman Reichenberg was also appointed to do psychological testing.
This defendant has a history of mental disorder and has been previously committed to The State Hospital. His mental disorder has been the subject of more than one diagnosis. He was found competent prior to his sentencing in The Criminal Division of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, in 1976, and thereafter concluded his period of incarceration in The State Prison System and was placed on probation. Following the filing of the reports by the referenced physicians and in a pre-trial conference, counsel represented the defendant in the other pending matter indicating that he was not going to present the issue of insanity in that case. This Court thereafter specifically found that the defendant was competent to stand trial, to understand the seriousness of the charges and able to assist his counsel in his defense. During the trial of the other matter which took place in May, 1978, the defendant aided his counsel and participated in his own defense. During the course of that trial he made some observations about people in the courtroom and these observations were minimally disruptive. His comments at that time were consistent with a person diagnosed as a sociopath.

Communications by the defendant to the Court following adjudication in the other matter relating to his treatment in the jail and his inability to have confidence in his Court appointed counsel to represent him in the instant case caused this Court to hold a hearing which ultimately led to the release of prior counsel and appointment of an attorney requested by the defendant who had represented him or members of his family in other matters. Upon the appointment of the new counsel, Michael Hacker, Esquire, additional physicians were retained by the defendant and a plea of not guilty by reason of insanity was filed in the instant case. A hearing was duly called to determine not only the defendant's competency to be tried on the instant case but also a test of his competency at the time of the commission of the crimes in the other matter and at the trial of the other matter. Testimony was taken from at least seven professional witnesses, all with generally conflicting opinions and/or evidence upon which opinions were reached. This Court determined that the defendant was competent to aid counsel at the time of the trial of the instant case, was competent at the trial of the last case, was competent at the commission of the crimes in the instant case and at the times of the commission of the crimes in the other matter. The Court specifically held that the defendant knew the difference between right and wrong and was able to recognize the criminality of his conduct and to make a voluntary and intelligent choice as to his conduct based upon knowledge of the consequences thereof.

The defendant has been diagnosed as suffering from a number of mental disorders: a basic paranoia schizophrenia psychotic process; Ganser syndrome; malingering, and a behavior characteristic commonly referred to as sociopathic. This defendant's conduct from crime through trial is indicative of an individual who has an absolute understanding of the events and the consequences thereof. There is nothing that would indicate that this defendant did not recognize the criminality of his conduct at the time of the commission of the subject offenses. The evidence requires the finding that this defendant was sane at the time of the commission of the instant offense consistent with the standards of the M'Naghten Rule and therefore this mitigating circumstance is not applicable. (Emphasis supplied.)

Apparently the judge applied the wrong standard in determining the presence or absence of the two mitigating circumstances related to emotional disturbance, so we have no alternative but to return this case to the trial judge for resentencing. As we stated in Mines v. State, 390 So.2d 332, 337 (Fla.1980), cert. denied, 447 U.S. 1, 101 S.Ct. 1994, 64 L.Ed.2d 681 (1981):
Under the provisions of section 921.141(6), Florida Statutes (1975), there are two mitigating circumstances relating to a defendant's mental condition which should be considered before the imposition of a death sentence: “(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance”; and “(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” From the record it is clear that the trial court properly concluded that the appellant was sane, and the defense of not guilty by reason of insanity was inappropriate. The finding of sanity, however, does not eliminate consideration of the statutory mitigating factors concerning mental condition.
The sentencing judge here, just as in Mines ; misconceived the standard to be applied in assessing the existence of mitigating factors (b) and (f). From reading his sentencing order we can draw no other conclusion but that the judge applied the test for insanity. He even referred to the “M'Naghten Rule” which is the traditional rule in this state for determination of sanity at the time of the offense. It is clear from Mines that the classic insanity test is not the appropriate standard for judging the applicability of mitigating circumstances under section 921.141(6), Florida Statutes.

In the absence of any mitigating factors, the death sentence would be held appropriate on review. Other execution style murders have warranted imposition of the ultimate penalty. See Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979); Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1661, 56 L.Ed.2d 93 (1978); and Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). Evidence of mental or emotional distress does not necessarily outweigh a heinous, atrocious or cruel crime. Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979).
However, in our review capacity we must be able to ascertain whether the trial judge properly considered and weighed these mitigating factors. Their existence would not as a matter of law, invalidate a death sentence, for a trial judge in exercising a reasoned judgment could find that a death sentence is appropriate. It is improper for us, in our review capacity, to make such a judgment.
The judgment of conviction is affirmed. The death sentence is vacated and the cause is remanded to the trial court for the purpose of determining an appropriate sentence. An additional sentence advisory verdict by a jury is not required.

ALDERMAN, C. J., and OVERTON and McDONALD, JJ., concur. SUNDBERG, J., concurs in result only. BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice, concurring in part and dissenting in part.

I would affirm the convictions and would also affirm the death penalty.

Ferguson v. State, 417 So.2d 639 (Fla. App. 1982). (Direct Appeal)

Defendant was convicted in the Circuit Court, Dade County, Richard S. Fuller, J., of six counts of murder in the first degree, two counts of attempted murder in the first degree, and three counts of robbery with firearm and sentenced to death and imprisonment. Direct appeal was taken. The Supreme Court, Adkins, J., held that: (1) the death penalty statutes are constitutional; (2) the prosecutor's allegedly improper comment that defendant was asking the jury to find a scapegoat for his guilt and put the blame on someone else who was already found guilty did not amount to reversible error; (3) testimony of a witness concerning prior imprisonment of the defendant was not so prejudicial as to warrant a reversal; (4) the findings as to two of the aggravating circumstances were improper; and (5) the trial court applied an improper standard in assessing the existence of mitigating factors of the defendant's mental state and his ability to appreciate the criminality of his conduct. Conviction affirmed; death sentence vacated and cause remanded. Sundberg, J., concurred in the result only. Boyd, J., concurred in part and dissented in part with an opinion.

ADKINS, Justice.

This is a direct appeal from an order adjudging the appellant guilty of six counts of murder in the first degree, two counts of attempted murder in the first degree, and three counts of robbery with a firearm, and imposing sentences of death and imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

On July 27, 1977, at approximately 8:15 p. m. the defendant, posing as an employee of the power company, requested permission from Margaret Wooden to enter her Carol City home and check the electrical outlets. After gaining entry and checking several rooms, the defendant drew a gun and tied and blindfolded Miss Wooden. He then let two men into the house who joined the defendant in searching for drugs and money.
Some two hours later, the owner of the house, Livingston Stocker, and five friends returned home. The defendant, who identified himself to Miss Wooden as “Lucky,” and his cohorts tied, blindfolded and searched the six men. All seven victims were then moved from the living room to the northeast bedroom.
Shortly thereafter, Miss Wooden's boyfriend, Miller, entered the house. He too was bound and searched. Then he and Miss Wooden were moved to her bedroom and the other six victims returned to the living room.

At some point one intruder's mask fell, revealing his face to the others. Miller and Wooden were kneeling on the floor with their upper bodies lying across the bed. Wooden heard shots from the living room then saw a pillow coming toward her head. She was shot. She saw Miller get shot then heard the defendant run out of the room. She managed to get out and run to a neighbor's house to call the police.
When the police arrived they found six dead bodies. All had been shot in the back of the head, their hands tied behind their backs. One of the victims, Johnnie Hall, had survived a shotgun blast to the back of his head. He testified to the methodical execution of the other men.

On September 15, 1977, the defendant and three co-defendants were indicted for the offense. Adolphus Archie, the “wheelman”, was allowed to plead guilty to second degree murder and a twenty-year concurrent sentence on all counts in exchange for testimony at trial. He testified he'd dropped the defendant, Marvin Francois, and Beauford White in the Carol City area to “rip off” a drug house. He didn't see the actual shooting but later saw unfamiliar weapons and jewelry in Beauford's and Francois' possession.
The defendant was tried alone and convicted on all counts. After an advisory sentencing hearing the jury recommended death. The judge followed that recommendation.

A second issue raised by defendant was that the trial court had failed to provide written findings in support of the sentence of death. § 921.141(3), Fla.Stat. (1977). Inasmuch as the supplemental record includes the trial judge's written findings this issue is now moot.
The third issue involves the following allegedly improper comment by the prosecution in closing argument: “[N]ot only did [defense counsel] ask you to find a scapegoat for Mr. Ferguson's guilt, he puts the blame on someone else who has already been found guilty, Marvin Francois.” A victim had identified Francois as an accomplice and the wheelman also implicated Francois. The defendant thus argues that the above comment said to the jury, if Francois is guilty then, ipso facto, defendant must be guilty.

There are several reasons we decline to find reversible error in this comment. First, the only objection made to the comment was a general one, followed by a motion for a mistrial. It is well settled that objections must be made with sufficient specificity to apprise the trial court of the potential error and to preserve the point for appellate review. Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978). The desirability and need for specified grounds also apply to motions for mistrials. A mistrial is a device used to halt the proceedings when the error is so prejudicial and fundamental that the expenditure of further time and expense would be wasteful if not futile. Johnsen v. State, 332 So.2d 69 (Fla.1976). Even if the comment is objectionable on some obvious ground, the proper procedure is to request an instruction from the court that the jury disregard the remarks. A motion for mistrial is addressed to the sound discretion of the trial judge and “the power to declare a mistrial and discharge the jury should be exercised with great care and should be done only in cases of absolute necessity.” Salvatore v. State of Florida, 366 So.2d 745, 750 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (citations omitted). Even if the general objection and request for a mistrial properly preserved this point for appellate review, we find that the trial judge correctly denied the motion. The comment was made on rebuttal in response to the theory presented by the defense during its closing argument that Francois and White had committed the crime and the defendant had never even been in the house, but had been misidentified by the victims. The prosecutor's comment fell within the bounds of a “fair reply” which is permissible in this instance. See Brown v. State, 367 So.2d 616 (Fla.1979). Viewed in this context, the comment on Francois' guilt was not sufficiently prejudicial to warrant a mistrial in this case. Cf. Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967) (prosecutor told jury of accomplice's conviction during voir dire and again during trial); and Moore v. State, 186 So.2d 56 (Fla. 3d DCA 1966) (judge announced co-defendant's guilty plea to jury as explanation for recess during trial). The fact that a jury hears of an accomplice's guilt does not necessarily constitute reversible error. See, e.g., Sanders v. State, 241 So.2d 430 (Fla. 3d DCA 1970); Walters v. State, 217 So.2d 615 (Fla. 2d DCA 1969); Vitiello v. State, 167 So.2d 629 (Fla. 3d DCA 1964); Grisette v. State, 152 So.2d 498 (Fla. 1st DCA 1963).

Defendant's final point on appeal concerns the testimony of Adolphus Archie, the “wheelman” who was allowed to plead to second degree murder for testifying. On direct examination Archie stated that the defendant knew Joe Swain (the person who allegedly orchestrated the killings) because “the first time ... my first time in prison, all three of us was together.” A general objection was overruled and a motion for mistrial denied. Initially, we reiterate our emphasis on the importance of stating specific grounds for objections and motions for mistrials. Also, especially in an instance such as this, a curative instruction should be requested. The defendant now contends that a prior imprisonment was irrelevant to his guilt or innocence in this case; the only result would be to show the defendant's “bad character.” Such remarks may be erroneously admitted yet not be so prejudicial as to require reversal. Darden v. State, 329 So.2d 287 (Fla.1976), cert. denied, 429 U.S. 1036, 97 S.Ct. 729, 50 L.Ed.2d 747 (1977); Thomas v. State, 326 So.2d 413 (Fla.1975). In Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978), the court noted that any prejudice arising from the admission of testimony indicating defendant's prior incarceration could have been corrected by an instruction to the jury to disregard the testimony. The court held that in the absence of a defense request for such an instruction, the trial court properly denied the motion for a mistrial. Our review of this record persuades us that the admission of Archie's testimony in this matter was not so prejudicial as to warrant a reversal. See Clark v. State, 363 So.2d 331 (Fla.1978).

The defendant in this case has not specifically attacked the sufficiency of the evidence supporting the conviction. It is nonetheless our duty to review the entire record. Tibbs v. State, 337 So.2d 788 (Fla.1978). It is abundantly clear that the evidence was sufficient and we therefore uphold the conviction.
We have also conducted an independent review of the sentencing proceedings and trial court's findings in aggravation and mitigation. Harvard v. State, 375 So.2d 833 (Fla.1977). That court found:

In support of this determination, the Court makes the following Findings of Fact relative to aggravating circumstances, consistent with Section 921.141(5) Florida Statutes.

(a) The crime for which the defendant was sentenced was committed while the defendant was under sentence of imprisonment. He had been convicted in The Circuit Court of the Eleventh Judicial Circuit in Case No. 76-4822, On September 16, 1976, of resisting an officer with violence and had been sentenced to The State Penitentiary for eighteen months to be followed by two years of probation. The sentence in the 76-4822 case had not been terminated and the case was still open. By stipulation the evidence in the subject case was adopted in the Probation Violation case and the probation was revoked by this Court on May 25, 1978.

(b) At the time of the crime for which this defendant was sentenced he had previously been convicted of three felonies involving the use or threat of violence to some person;
1. Eleventh Judicial Circuit No. Cr. 2237, Assault with Intent to Commit Rape, October 15, 1965, Judge Harold R. Vann, sentence ten years.
2. Eleventh Judicial Circuit Case No. 69-9963, Robbery, February 22, 1971, Judge Alto Adams.
3. Eleventh Judicial Circuit Case No. 76-4822, resisting officer with violence to his person. Eighteen months State Prison, followed by two years probation. September 16, 1976, Judge Alan R. Schwartz.

(c) The defendant, in committing the crime for which he is sentenced, knowingly created a great risk of death to many persons. For a number of hours the defendant and others held at bay, tied and otherwise incapacitated any one who entered the premises following this defendant's original entry thereto. The original resident, Miss Wooden, was first tied and about two hours later Mr. Stocker and his five friends arrived. They were confronted and under threat of injury, tied and silenced. Thereafter Miss Wooden's boy friend, Michael Miller, arrived and was tied and placed with the others. We can only speculate as to what would have happened had additional people such as friends or delivery personnel shown up during the course of this crime. Suffice it to say that all eight people were shot and six of these people died as a result of the gunshot wounds inflicted upon them during the perpetration of the enumerated crime of robbery. The evidence indicated that the sole person to initially be robbed was victim Stocker, but because a young lady and her boy friend also resided in the home (unknown to the defendant and his accomplices when the crime was planned), and that Stocker arrived with five friends automatically placed all of them in a position of being exterminated.

(e)(g) The crime for which this defendant has been sentenced was committed for the purpose of avoiding or preventing a lawful arrest and to disrupt or hinder the lawful exercise of law enforcement. The evidence is myriad as to the effort put forth by the participants in this crime in making certain that their crime of robbery would go undetected. These include but are not necessarily limited to factors such as the avoidance of touching areas where the prints might be left; the use of barrels of weapons they carried to turn lights on or off; the application of grease in the car used, the use of masks; the hiding of one of the automobiles involved and the placing in the junk yard the other; the disposal of guns that were used by throwing them into the Miami River and the ultimate attempt to annihilate all possible witnesses to the robbery. It's obvious that great care was used by the participants while inside the residence or the vehicles in that only one out of more than five hundred fingerprints could be directly attributed to any of the four participants in this crime.

(d)(f) The crime for which the defendant has been sentenced was committed while engaged in a robbery for pecuniary gain. A substantial amount of money, jewelry and other personal effects were taken from the various victims or in hiding places or drawers in the residence and the money was divided equally among the four perpetrators of the robbery at a meeting following the escape from the residence of the crime.

(h) This crime was especially heinous, atrocious and cruel. The defendant first approached the house posing as a Florida Power and Light employee and went through Mr. Stocker's residence, in the company of Miss Wooden, presumably checking on electrical outlets. Finally he pressed a gun to the back of Miss Wooden's neck and told her to remain quiet while he went about his other business. He tied her hands behind her back and then on numerous occasions had her moving in and around the house. He subsequently put a stocking around her eyes and then a towel and forced her to lie down on her bed. He thn [sic.] got her up and took her blindfold off and made her respond to the front door where a visitor had approached. While she was talking to this visitor with her hands tied behind her back, a pistol was pointed at her a short distance away where the defendant was hiding behind the front door.

She was then taken back to her room blindfolded and told to lay across the bed. Other men came into the house and she was told that these men would be good to her. She heard voices moving around the house and was asked for gloves. One of the participants said her hands were tied too loosely and he re-tied her hands and her blindfold. She was tied so tightly that it affected her breathing because she was an asthmatic and was required to take medication to aid her. As she was laying across the bed she could hear people ransacking the house and was asked to disclose the location of her purse so that it could also be examined. She was unblindfolded and told to determine the ownership of a car which was parked outside and at that time she noticed that all the participants in this crime were carrying weapons. Following her identification of the cadillac she was returned to her room, blindfolded and put back on the bed. Almost two hours passed until Stocker arrived. She was told to be quiet and she said, “Don't hurt me, I'll be good”. She was crying and thought of dying.
She was blindfolded again and returned to the living room where six men were laying on the floor. Two of them were in the dining area and four in the living room. Their hands were tied behind their back and the defendant and his co-conspirators were going through their pockets and asking for money and drugs. She watched as a shotgun was brought out of Mr. Stocker's room and one of the men put the shotgun to her head and said, “Give us something or we will kill her”. All seven people were then moved into the northeast bedroom where all of them were pleading for their lives. One of the victims was heard to have said that he had been brought up with one of the defendants and shouldn't be hurt.

She next heard Michael Miller scream as he came into the house. She yelled to them not to hurt him. Mr. Miller was then tied, searched and brought into the bedroom. Ferguson then took Miss Wooden and Mr. Miller back to their bedroom with Ferguson again helping her as she moved along. Ferguson told her not to worry that everything was going to be alright and she and Miller were instructed to kneel down next to the bed with their bodies across the bed. She then heard some sounds that sounded like shots from the other part of the house and saw a pillow coming towards her head. She was then shot and then watched Michael get shot. She then heard Ferguson run out of the room. She screamed hysterically for Michael, then got up and got her blindfold off and saw the dead men in the other room. She was able to open the front door and ran screaming to the next door neighbor's house.
While the six men remained in Stocker's bedroom Stocker was heard to cry to God for His help in stopping what he thought was going to take place. Stocker was told “Shut up nigger” (all participants and victims of this crime were of the black race) and his prayers were further interrupted by a shotgun blast to the back of his head. The other gentlemen in the room were then methodically shot by either a shotgun or a pistol into the backs of their heads. Miraculously one of this group survived as did Miss Wooden. The method of execution used by this defendant and his co-conspirators reflects not only an absolute lack of concern for human life or dignity but also that of a consciousless or pitiless individual.

A careful consideration of all matters presented to the Court compels the following Findings of Fact relating to mitigating circumstances as specified by Section 921.141(6) Florida Statutes:
(a) The defendant does have a significant history of prior criminal activity. (see aggravating circumstances Supra)
(b)(f) The defendant was not under the influence of any extreme mental or emotional disturbance and his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.

At the time of his arraignment on the instant charges his counsel entered a plea of “not guilty by reason of insanity”. The Court appointed three disinterested psychiatrists; Drs. Harry Graff, Charles Mutter and Albert Jaslow. Subsequent thereto Dr. Norman Reichenberg was also appointed to do psychological testings.
This defendant has a history of mental disorder and has previously been committed to The State Hospital. He was found competent prior to his sentencing in 1976, thereafter concluded this period of time in The State Prison System and was placed on probation. Following the filing of the reports by the referenced physicians and in a pre-trial conference counsel for the defendant, after consultation with his client, indicated that he was not going to present the issue of insanity to this jury. This Court specifically found that the defendant was competent to stand trial, to understand the seriousness of the charges and able to assist his counsel in his defense. There is nothing that would indicate that this defendant did not recognize the criminality of his conduct at the time of the commission of the referenced offenses. The evidence requires a finding that defendant was sane at the time of the commission of the instant offense consistent with the standards of the “M'Naghten Rule”.

This defendant's conduct throughout the entire course of this crime from planning state through escape is indicative of a[n] individual who had an absolute understanding of the events and consequences thereof.

(c) The victims of this crime were not participants in the defendant's conduct and did not consent to the crimes involved.

(d) The defendant was a principal participant in the planning and execution of the robbery plans and all actions following the leaving of the scene of the crime which were designed to aid in avoiding detection. His participation constituted a major part of the total criminal activity involved. He was personally responsible for shooting two of the victims, killing one of them.

(e) There is nothing in the evidence in this case that would indicate that this defendant was under extreme duress or under the substantial domination of any other person. He was a[n] active participating principal throughout the course of these crimes, gave directions and dictated to some extent directions to be followed by others involved.

(g) There is nothing about the defendant's age of approximately thirty years which in any way could be considered a mitigating factor in this case.

Upon consideration it was at the time of the sentencing, and is now, during the formulation of the written Order, the inescapable conclusion of the Court that sufficient aggravating circumstances exist and that no mitigating circumstances exist which could possibly outweigh the aggravating circumstances. Accordingly, this Court agrees with the recommendation of the trial jury that the crime involved in this case justifies, warrants and cries out for the imposition of the death penalty.

The only possible mitigating circumstances involved the defendant's mental state and his ability to appreciate the criminality of his conduct. § 921.14(6)(b) and (f), Florida Statutes (1977). In rejecting these the sentencing judge here, just as in Mines v. State, 390 So.2d 332, 337 (Fla.1980), cert. denied, 447 U.S. 1, 101 S.Ct. 1994, 64 L.Ed.2d 681 (1981), misconceived the standard to be applied in assessing the existence of these mitigating factors. Apparently the judge applied the test for insanity, just as he did in Ferguson v. State, 417 So.2d 631 (1982). The sentence in the latter case was vacated and the case was remanded to the trial judge for sentencing. We must follow the same procedure here.

The trial court's finding in aggravation that defendant knowingly created a great risk of death to many persons was improper. In White v. State, 403 So.2d 331 (March 20, 1981), we held that said aggravating circumstance was inapplicable with regard to defendant's accomplice, Beauford White, and for the reasons expressed therein we hold likewise in the case sub judice. Also improper was the finding, as an aggravating circumstance, that defendant was under a sentence of imprisonment at the time that he committed the crimes for which he was sentenced. At the time of the murders, defendant was serving a two-year period of probation which followed an eighteen-month period of incarceration. He was not confined in prison at the time, nor was he supposed to be. In Peek v. State, 395 So.2d 492 (Fla.1981), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 384 (1981), we held that: Persons who are under an order of probation and are not at the time of the commission of the capital offense incarcerated or escapees from incarceration do not fall within the phrase “person under sentence of imprisonment” as set forth in section 921.141(5)(a). Id. at 499. Thus defendant was not a “person under sentence of imprisonment.”

Our negation of two of the aggravating circumstances found by the trial court would not change the result of this case in the absence of mitigating circumstances for there remain four valid aggravating circumstances. In such cases, a reversal of the death sentence would not necessarily be required, as any error that occurred in the consideration of the two inapplicable aggravating circumstances was harmless. See Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 289 (1981); Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 101 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); and Elledge v. State, 346 So.2d 998 (Fla.1977).
The execution-style murders committed by the defendant have often led to an appropriately imposed sentence of death. In Sullivan v. State, 303 So.2d 632 (Fla.1974), the defendant and an accomplice took the victim to a swampy area, intending to kill him. The defendant struck the victim twice with a tire iron, shot him in the back of the head with both barrels of a shotgun, reloaded and shot him again. This Court said, “The facts speak for themselves. This was an execution-type slaying. The sentence of death is appropriate and should be affirmed.” Id. at 638.

In Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978), the defendant and another man saw two sailors in a bar. They enlisted two women to entice the sailors to a late night rendezvous. The sailors were taken to a dark street and told to get out of the car and hand over their money. As one man got out of the car, offering his money and begging not to be shot, the defendant shot him twice in the head. The other sailor was also shot but did not die. Noting the absence of mitigating circumstances, this Court affirmed the sentence.
In another case the two victims had been shot in the head at close range. Again, in the absence of mitigating circumstances the death sentence was affirmed. Jackson v. State, 359 So.2d 1190 (Fla.1978).

In our review capacity we must be able to ascertain whether the trial judge properly considered and weighed the above mitigating factors. Their existence would not as a matter of law, invalidate a death sentence, for a trial judge in exercising a reasoned judgment could find that a death sentence is appropriate. It is improper for us, in our review capacity, to make such a judgment.
The judgment of conviction is affirmed. The death sentence is vacated and the cause is remanded to the trial court for the purpose of determining an appropriate sentence. An additional sentence advisory verdict by a jury is not required.

ALDERMAN, C. J., and OVERTON and McDONALD, JJ., concur. SUNDBERG, J., concurs in result only. BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice, concurring in part and dissenting in part.
I concur in the affirmance of appellant's convictions which include six counts of premeditated murder. I dissent to the court's judgment vacating the sentences of death. The trial court's findings of aggravating circumstances and the absence of mitigating circumstances were supported by the evidence and in accordance with the law. We should affirm the sentences of death.

Ferguson v. State, 474 So.2d 208 (Fla. App. 1985). (Direct Appeal)

Defendant was convicted in the Circuit Court, Dade County, Richard S. Fuller, J., of, inter alia, six counts of murder in the first degree, and sentenced to death. He appealed. The Supreme Court, 417 So.2d 631, and 417 So.2d 639, affirmed conviction but remanded for resentencing. On remand, the Circuit Court, Dade County, Herbert M. Klein, J., again sentenced defendant to death, and he appealed. The Supreme Court, Adkins, J., held that: (1) trial court did not err in refusing to allow evidentiary hearing for purpose of resentencing, and (2) trial court did not err in applying aggravating factor that murder was “cold, calculated and premeditated.” Death sentence affirmed.

ADKINS, Justice.
This is a consolidated appeal of the resentencing of appellant to death. Jurisdiction is properly invoked pursuant to article V, section 3(b)(1), of the Florida Constitution. We affirm appellant's sentence of death.

On April 19, 1983, a resentencing hearing was held before Judge Herbert Klein. At that time, appellant made a motion to bring in witnesses to testify as to the mitigating factors. Judge Klein denied that motion referring to this Court's indication that another advisory jury would not be necessary. On May 27, 1983, Judge Klein entered his findings in support of the death sentence, resentencing appellant to death. With regard to mitigation under § 921.141(6)(b) and (f) the trial court stated that “there is some evidence to indicate that the felony was committed while the defendant was under the influence of extreme mental disturbance and that the capacity of the defendant to appreciate the criminality of his conduct so as to conform his conduct to the requirements of law may have been substantially impaired.” The trial court concluded its findings in support of the death penalty in stating “that sufficient aggravating circumstances exist for the imposition of the sentence of death and that there are insufficient mitigating circumstances that outweigh the aggravating circumstances.” The facts of these now consolidated cases are set forth at 417 So.2d 631 and 417 So.2d 639.

Appellant argues that the trial court erred in refusing to allow an evidentiary hearing for the purpose of resentencing. On remand, the trial court ordered counsel for appellant to make an offer of proof to enable it to determine whether to conduct an evidentiary hearing. The trial court stated that the given offer of proof was insufficient to warrant reopening the case for such hearing. We find that the trial court did not abuse its discretion in refusing to allow an evidentiary hearing.

Appellant next contends that the trial court erred in applying the aggravating factor of a “cold, calculated and premeditated” murder. We disagree. Evidence that the murders committed by appellant were committed in a “cold, calculated and premeditated” manner has always been present in the record before us. We thus find no error in the trial court's consideration of this aggravating circumstance on remand for resentencing. See Spaziano v. State, 433 So.2d 508 (Fla.1983), aff'd, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). We further find that nothing in the federal or state constitution prohibited the application of the then new aggravating circumstance to any pending cause presented for sentencing. See Preston v. State, 444 So.2d 939 (Fla.1984).

Appellant finally argues that his right to confront witnesses was violated when the trial court considered evidence not of record in this case. There is no merit in this contention. Accordingly, we affirm appellant's sentence of death. It is so ordered.

Defendant, convicted of eight counts of murder and sentenced to death, sought postconviction relief. The Circuit Court, Dade County, Richard S. Fuller, J., denied relief. Defendant appealed. The Supreme Court held that: (1) defendant failed to establish that performance of counsel was deficient with respect to investigation into defendant's family background and mental history; (2) defense counsel's closing argument was not deficient merely because it failed to persuade jury; (3) defense counsel's failure to object to statement of prosecutor in closing argument was tactical one and did not constitute ineffective assistance of counsel; (4) instruction on nonstatutory mitigating evidence in penalty phase of murder trial did not violate United States Supreme Court Hitchcock rule; and (5) instructions which failed to adequately explain that jury could consider nonstatutory mitigating evidence in penalty phase of murder trial was harmless error. Affirmed.

PER CURIAM.

John Errol Ferguson, a prisoner under eight sentences of death, sought postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. After an evidentiary hearing, the circuit court denied relief. Ferguson appeals. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.
Ferguson was convicted of six counts of murder for the execution-style killings of six people in Carol City. He was also convicted of two counts of murder for the killing of a young couple in Hialeah. In each case the jury recommended death on all counts, and the judge followed the jury's recommendation. This Court affirmed the convictions in both cases but remanded for reconsideration of the sentences by the judge because it could not be determined whether there had been a proper consideration of mitigating factors. Ferguson v. State, 417 So.2d 639 (Fla.1982) (Carol City); Ferguson v. State, 417 So.2d 631 (Fla.1982) (Hialeah). After a consolidated resentencing hearing, the trial court again imposed all eight sentences of death. This Court affirmed on appeal. Ferguson v. State, 474 So.2d 208 (Fla.1985).

We first address Ferguson's claims of ineffective assistance of counsel. In order to prevail on this claim, Ferguson must demonstrate that counsel's performance was deficient and that there is a reasonable probability that the result of the proceeding would have been different absent the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Ferguson claims that his counsel in the Carol City trial was ineffective for failing to investigate and present mitigating evidence of Ferguson's mental impairment and difficult childhood. At the evidentiary hearing below, Ferguson's counsel testified that he reviewed four psychiatric reports of doctors appointed to examine Ferguson when counsel initially filed an insanity plea. Counsel also spoke to the doctors and took the deposition of the doctor who could provide the most favorable testimony. Although counsel did not obtain any reports prepared by doctors who had examined Ferguson in the past, he must have been aware of the fact that Ferguson's mental problems dated back to 1971, since this information was revealed in the reports he did review.
Counsel also testified that he spoke to Ferguson's mother and to other family members. One of Ferguson's sisters was apparently reluctant to cooperate because she felt her job with the state attorney's office was jeopardized by her involvement in the case. Ferguson's mother was presented as a penalty phase witness. She testified that Ferguson was a good son, that he liked art and music, and that he helped support her when he was home. She also testified that Ferguson had mental problems and had been in a mental hospital.

In support of his 3.850 motion, Ferguson presented the testimony of several family members who had not testified at the original sentencing. This testimony indicated that Ferguson's childhood was difficult. His family was poor and moved around a lot, and his mother worked most of the time to support the children. His father was an alcoholic, who died when Ferguson was thirteen. The death of his father depressed Ferguson, and he began having run-ins with the law and problems in school. Ferguson's mother had many boyfriends, some of whom physically abused her in front of the children. Testimony was also presented that Ferguson was shot by a policeman; following this shooting Ferguson's behavior changed—he became paranoid and hostile. FN1. We note that the admission of this evidence would have allowed the jury to hear the circumstances behind the shooting, which were not favorable to Ferguson.

The circuit judge found that counsel did conduct a reasonable investigation into Ferguson's family background and mental history and that his performance was not deficient. Although counsel did not exhaust all available sources of information by obtaining additional doctor's reports, hospital records, school records, or court records, this was not a case in which the attorney conducted only minimal investigation. Counsel interviewed family members and presented the testimony of Ferguson's mother. He was aware of Ferguson's mental problems, having reviewed reports prepared at his request and having interviewed the doctors who examined his client. The circuit judge concluded that counsel had made a tactical decision not to call the doctors as witnesses. Counsel had the information before him and could have reasonably decided that presenting mental illness testimony would have opened the door to extremely damaging State rebuttal. Several doctors indicated that they believed Ferguson was malingering, that he was a sociopath, not schizophrenic, and that he was a very dangerous person. Instead of opening the door to this evidence, counsel informed the jury of Ferguson's mental condition through the testimony of Ferguson's mother, who discussed the fact that he had mental problems and had been in a mental hospital. This was a reasonable strategy in light of the negative aspects of the expert testimony. We affirm the circuit court's finding that Ferguson has failed to establish that the performance of his Carol City trial counsel was deficient.

Ferguson's claim that his Hialeah trial counsel was ineffective is similar, in that it is also based on counsel's alleged lack of investigation and presentation of mitigating evidence of Ferguson's mental illness and poor childhood. Ferguson also argues that his counsel was ineffective for failing to object during the prosecutor's closing argument and for making an inadequate closing argument himself.
In the penalty phase of the Hialeah trial, no mitigating evidence was presented by the defense. Ferguson asserts that counsel should have put on mental mitigating evidence. Unlike the Carol City case, Ferguson does not claim here that counsel failed to investigate the extent of his mental illness. At the guilt phase of the trial, the defense claimed that Ferguson was insane, and numerous experts testified extensively as to Ferguson's mental problems. Counsel was fully aware that the standard for finding the statutory mitigating circumstances FN2 to be applicable is lower than the M'Naghten insanity standard. Obviously if defense experts thought Ferguson met the higher standard for insanity they also believed he met the lower standard for statutory mitigation. In his penalty phase closing, counsel argued that the statutory mental mitigating factors applied to Ferguson, noting that even the State's experts agreed that Ferguson had a serious mental illness. Counsel testified at the hearing below that he and cocounsel considered putting the doctors on again and concluded that it would be cumulative. Counsel cannot be faulted for not recalling his experts at the penalty phase or parading still more experts in front of the jury.
FN2. § 921.141(6)(b) (the defendant was under the influence of extreme mental or emotional disturbance); (6)(f) (the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired), Fla.Stat. (1977).

We also find no deficiency in counsel's failure to present evidence of Ferguson's family background. Counsel was in touch with members of Ferguson's family. Ferguson's mother was called to the witness stand in the penalty phase. She was unable to testify when she became hysterical and nearly fainted, and counsel chose to remove her from the stand. Although counsel could have asked for a continuance to allow Ferguson's mother to compose herself, the decision to withdraw this witness was certainly reasonable in light of her emotional state. There was no connotation that she was removed because she could have nothing good to say about her son.

Ferguson's assertion that counsel's closing argument was deficient is also without merit. Although in hindsight one can speculate that a different argument may have been more effective, counsel's argument does not fall to the level of deficient performance simply because it ultimately failed to persuade the jury. The circuit judge described the argument as “emotional and comprehensive, with the strategy to relay to the jury that the Defendant was mentally ill, and it was not the policy of the State or humanity to be executing people who are mentally ill ... a credible argument asking for mercy.” This argument clearly falls within the “wide range of professionally competent assistance.” See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
We also reject Ferguson's argument as to counsel's failure to object to statements in the prosecutor's closing. The decision not to object is a tactical one. Although some of the prosecutor's remarks were objectionable, he did not dwell on these inappropriate comments, nor were they so severely inflammatory or damaging as to render counsel's silence deficient performance. While we have concluded that counsel did not render ineffective assistance in either case, we also hold that Ferguson did not meet his burden under the second prong of the Strickland test. In other words, even if it could be said that counsel was ineffective, there is no reasonable probability that the result would have been different, in the absence of any deficient performance.

We next address Ferguson's claims that the instructions given in the penalty phases of his trials violated his rights under Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). There, the Supreme Court held that the jury must not be led to believe that nonstatutory mitigating evidence cannot be considered in capital sentencing.
In the Carol City trial, the judge instructed the jury as follows:
The aggravating circumstances which you may consider are limited to such of the following as may be established by the evidence ... [listing the statutory aggravating factors]. The mitigating circumstances which you may consider, if established by the evidence, are these ... [listing the statutory mitigating factors].
The aggravating circumstances which you may consider are limited to those upon which I have just instructed you. However, there is no such limitation upon the mitigating factors which you may consider. (Emphasis added.)

An instruction virtually identical to this instruction was given in Adams v. State, 543 So.2d 1244 (Fla.1989). This Court rejected Adams' Hitchcock claim, finding that “[i]n view of the instruction which was given, we are convinced that the jury was not misled concerning its ability to consider nonstatutory mitigating circumstances....” Id. at 1248. Ferguson argues that Adams is distinguishable because in that case the judge decided to give the instruction after the prosecutor argued in his closing that only statutory mitigation could be considered. Here, the instruction was given after previous instructions by the court itself had implied that only statutory mitigation could be considered. Although we agree that the motivation for giving the curative instruction may have been different in Adams, this does not change the effect of the instruction. As in Adams, the jury here was clearly instructed that they were not limited to consideration of the statutory mitigating circumstances, and there was no Hitchcock error.

In the Hialeah case, the State has conceded that the instructions given were improper because they failed to adequately explain that the jury could consider nonstatutory mitigating evidence. Therefore, our consideration of Ferguson's argument that Hitchcock error entitles him to a new sentencing requires us to determine whether this error was harmless beyond a reasonable doubt.
The circuit court found the Hitchcock error to be harmless. The Hialeah jury had before it extensive evidence of Ferguson's mental problems from the expert testimony at the guilt phase, but did not find the evidence significant enough, when compared to the evidence in aggravation, to recommend a life sentence. The additional mitigating evidence presented at the 3.850 hearing was relatively insignificant. Although Ferguson's family was poor and somewhat unstable, his mother did her best to provide for the children, and there was no testimony that Ferguson himself was beaten or abused.

This mitigation is especially insignificant in light of the heinous nature of the killings in this case and the overwhelming aggravating factors. We discussed these murders in detail in our opinion on direct appeal.

The facts reveal that the two victims were seated in an automobile and while seated therein a gunshot was fired through the window striking Brian Glenfeld in the arm and chest area. A significant amount of bleeding followed and this victim's blood was found throughout many areas of the front of the automobile as well as on the clothing of Belinda Worley. Following the shooting, the female victim ran many hundreds of feet from the car in an attempt to allude [sic] the defendant and was finally overtaken in some rather dense overgrowth and trees. She was subjected to many physical abuses by this defendant, including but not limited to, sexual penetration of her vagina and anus. The discovery of embedded dirt in her fingers, on her torso both front and back and in many areas within her mouth and the findings of hemorrhaging around her vagina and anal cavity would indicate that she put up a significant struggle and suffered substantially during the perpetration of these indignities upon her body. Expert testimony indicates that she was a virgin at the time of the occur[r]ence of this crime. The position of her body and the location of the wounds on her head would indicate that she was in a kneeling position at the time she was shot through the top of the head. She was left in a partially nude condition in the area where the crime was committed to be thereafter fed upon by insects and other predators. Physical evidence would substantiate that following the attack upon Belinda Worley the defendant went back to the car and shot Brian Glenfeld through the head. Ferguson, 417 So.2d at 636. The following aggravating circumstances were found: (1) Ferguson had committed three prior violent felonies; FN3 (2) the murders were committed in the course of a robbery; (3) the murders were committed to avoid lawful arrest; (4) the murders were especially heinous, atrocious, or cruel; and (5) the murders were cold, calculated, and premeditated. FN3. Assault with intent to commit rape; robbery; and resisting an officer with violence.

We affirm the circuit court's finding that the Hitchcock error was harmless. Even if the nonstatutory mitigating evidence introduced at the 3.850 hearing had been presented and the jury had been specifically told it should consider nonstatutory mitigation in the weighing process, we are convinced beyond a reasonable doubt that the outcome would be the same.

Ferguson also raises the following claims: (1) these proceedings should be stayed pending another determination that Ferguson is competent to proceed; (2) the State failed to correct knowingly false testimony at the Carol City penalty phase; (3) the State failed to disclose impeachment evidence; (4) trial counsel was ineffective for failing to object to the prosecutor's use of peremptory challenges in both trials; and (5) the circuit judge erred in finding several of Ferguson's claims to be procedurally barred. These claims are without merit and may be summarily denied.

For the foregoing reasons, we affirm the denial of Ferguson's 3.850 motion. It is so ordered.

Defendant was convicted in the Circuit Court, Dade County, Richard S. Fuller, J., of inter alia, six counts of murder in the first degree, and sentenced to death, and he appealed. The Supreme Court, 417 So.2d 631, and 417 So.2d 639, affirmed conviction, but remanded for resentencing. On remand, the Circuit Court, Dade County, Herbert M. Klein, J., sentenced defendant to death, and he appealed. The Supreme Court, Adkins, J., 474 So.2d 208, affirmed, and defendant sought postconviction relief. The Circuit Court, Dade County, Richard S. Fuller, J., denied relief, and defendant appealed. The Supreme Court, 593 So.2d 508, affirmed, and defendant petitioned for writ of habeas corpus. The Supreme Court held that: (1) cases holding that judge who is substituted before initial trial on the merits is completed and does not hear evidence presented during penalty phase of death penalty case or judge who is substituted during resentencing proceeding in death penalty case must conduct new sentencing proceeding before a jury will not be applied retroactively to cases already final, and (2) appellate counsel was not ineffective. Petition denied. Barkett, C.J., concurred in result only. Shaw, J., dissented.

PER CURIAM.

John Errol Ferguson, a prisoner under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction under article V, sections 3(b)(1) and (9) of the Florida Constitution.

Ferguson was convicted of six counts of murder for the execution-style killings of six people in Carol City. He was also convicted of two counts of murder for the killing of a young couple in Hialeah. In each case the jury recommended death on all counts, and the judge followed the jury's recommendation. This Court affirmed the convictions in both cases but remanded for reconsideration of the sentences because the judge failed to properly consider mental mitigation. Ferguson v. State, 417 So.2d 639 (Fla.1982) (Carol City); Ferguson v. State, 417 So.2d 631 (Fla.1982) (Hialeah). After a consolidated resentencing hearing, the trial court again imposed all eight sentences of death. This Court affirmed on appeal. Ferguson v. State, 474 So.2d 208 (Fla.1985). Ferguson then filed a petition for relief pursuant to Florida Rule of Criminal Procedure 3.850, which was denied by the circuit court after an evidentiary hearing. This Court affirmed on appeal. Ferguson v. State, 593 So.2d 508 (Fla.1992).

This is Ferguson's first habeas petition. He raises four claims: (1) that he is entitled to a new sentencing because a substitute judge sentenced him on remand; (2) that the jury instruction given in each trial on the aggravating factor of heinous, atrocious, or cruel was unconstitutionally vague; (3) that he was denied a fair trial because the trial judge refused defense counsel's request to stop giving Ferguson the antipsychotic drug Haldol; and (4) that appellate counsel was ineffective.
Judge Richard Fuller presided over the original trials and sentencing proceedings in both cases. When this Court remanded for resentencing due to Judge Fuller's failure to properly consider mitigation, a different judge, Judge Klein, heard the case. FN1 Without empaneling a jury and without any evidentiary hearing, Judge Klein sentenced Ferguson to death.
FN1. Judge Fuller had retired from the bench and moved to Colorado.

Ferguson argues that this process violated the holding in Corbett v. State, 602 So.2d 1240 (Fla.1992), since he was sentenced by a judge who did not personally hear the aggravation and mitigation. In Corbett, the trial judge died after the conclusion of the guilt and sentencing phases of trial and after the jury had returned a death recommendation. A substitute judge was appointed. He denied Corbett's request for a new sentencing proceeding and, after reviewing the record, sentenced Corbett to death. On appeal, this Court held that Florida Rule of Criminal Procedure 3.700(c), providing for sentencing by a substitute judge after he acquaints himself with the record, was not applicable to death penalty cases in view of the “very special and unique fact-finding responsibilities of the sentencing judge.” Corbett, 602 So.2d at 1243. Rather, a judge who is substituted before the initial trial on the merits is completed and who does not hear the evidence presented during the penalty phase of the trial must conduct a new sentencing proceeding before a jury to assure that both the judge and the jury hear the same evidence.
The State first argues that Corbett applies only to situations where a judge is substituted before the initial trial and sentencing are completed and is inapplicable to a resentencing proceeding. This contention was specifically rejected in Craig v. State, 620 So.2d 174 (Fla.1993), where this Court held that the holding in Corbett applied to a resentencing proceeding.
The State next argues that Corbett is not a fundamental change in the law and should not be applied retroactively. We agree. This Court extensively addressed the retroactivity of case law in Witt v. State, 387 So.2d 922, 925 (Fla.) (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979)), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), noting that it has “long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” We then stated the test for retroactivity as follows:
[O]nly major constitutional changes of law will be cognizable in [collateral proceedings.] ...

In contrast to these jurisprudential upheavals [such as Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ] are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.
Witt, 387 So.2d at 929-30 (emphasis in original).

We find that Corbett and Craig are not fundamental constitutional changes in the law, but rather “nonconstitutional, evolutionary developments in the law, arising from our case-by-case application of Florida's death penalty statute.” Witt, 387 So.2d at 930. As such, they will not be applied retroactively to cases already final. In any event, we also find that Ferguson has failed to preserve this issue, and his claim is therefore procedurally barred. While counsel at resentencing did request an evidentiary hearing, he failed to raise the grounds now raised-that Judge Klein could not properly evaluate the aggravation and mitigation on the basis of a cold record. This claim was raised on direct appeal from resentencing, but since it was not raised below it was procedurally barred at that time.

Ferguson next argues that the jury instruction on the heinous, atrocious, or cruel aggravator, given at both trials, was invalid under Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). The instruction given at these trials was virtually identical to the instruction held to be unconstitutionally vague in Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). However, as noted by the State, trial counsel failed to object to the instruction at either trial and this issue was not raised on direct appeal in either case. It is therefore procedurally barred. See, e.g., Turner v. Dugger, 614 So.2d 1075 (Fla.1992). While counsel did file a motion prior to each trial challenging the constitutionality of Florida's death penalty statute and the vagueness of its aggravating circumstances, including this aggravator, there was no specific objection to the jury instruction. Ferguson's argument that the jury's recommendation was tainted by other aggravators later overturned by this Court is also procedurally barred, as this argument was not raised on direct appeal.

Ferguson next argues that he is entitled to relief under Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). There, the Supreme Court held that the forced administration of antipsychotic medication during a criminal trial was unconstitutional, absent an essential state interest in continuing the medication. Ferguson argues that Riggins was violated in his case because he was on Haldol throughout his trials.
Riggins is inapplicable here. The record reflects that the medication Ferguson received was not involuntary or forced upon him. Testimony indicated that the medication was given to Ferguson in his cell, and he could take it or not-it was completely up to him. In fact, the head nurse at the Dade County Jail Clinic testified at the Hialeah trial that Ferguson was very upset when he didn't receive his medication for a short time after transferring from Raiford, which is completely inconsistent with any assertion that Ferguson was medicated involuntarily. There was never any suggestion of the medical impropriety of Ferguson's medication.
Further, defense counsel never requested on the record that the medication be discontinued. The only even arguable request came at the very end of the original Hialeah sentencing proceeding, when counsel renewed his argument that Ferguson was incompetent and noted that he was receiving a significant amount of medication for his condition. Counsel then suggested that the court might want to sentence Ferguson when he was withdrawn from the medication. We do not construe this as a request that Ferguson be taken off the medication before sentence was pronounced. In any event, if the trial court erred in sentencing Ferguson while he was on medication, since the sentence was then vacated on appeal, the error was rendered moot. Counsel did mention Ferguson's medication at the resentencing proceeding, but this was in the context of mitigation and Ferguson's mental condition; there was no request at that time that the medication be discontinued.
In a supplemental record submitted with this petition, there is an affidavit from trial counsel in which he asserts that he asked on at least two other occasions to have the medication discontinued. These requests are not reflected in the record and were evidently not transcribed. Even assuming that counsel's statements are accurate, this is a far cry from the situation in Riggins, where the medication was forced upon the defendant and counsel objected to the medication's effect on the defendant's demeanor at trial and on the witness stand and alleged that it tainted their defense of insanity. Here, the medication was not involuntary, and the only alleged effect was that it supposedly rendered Ferguson incompetent to stand trial. Ferguson's competency was extensively litigated previously, and the trial court's determination that he was competent was affirmed by this Court on direct appeal. Ferguson, 417 So.2d at 634.

Finally, Ferguson argues that his appellate counsel was ineffective. In order to evaluate such a claim, this Court must determine “first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).

Ferguson raises numerous alleged omissions by appellate counsel. We address each of these arguments in turn. As to Ferguson's first claim, that counsel should have argued that the heinous, atrocious, or cruel aggravator was improperly found, we first note that on the appeal of the original sentencing in the Carol City case this Court “conducted an independent review of the sentencing proceedings and trial court's findings in aggravation and mitigation” and did not strike this aggravator. Ferguson, 417 So.2d at 642. Accordingly, it was reasonable for counsel to conclude that raising this argument on appeal of resentencing would have been futile. Further, the facts of the murders support a finding of heinous, atrocious, or cruel. See Francois v. State, 407 So.2d 885, 890 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982); White v. State, 403 So.2d 331, 338-39 (Fla.1981) (rejecting Ferguson's accomplices' claims that murders were not heinous, atrocious, or cruel), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). Counsel cannot be ineffective for failing to raise a meritless claim.

Turning to the Hialeah case, there is no question that the rape and murder of Belinda Worley were heinous, atrocious, or cruel. As to Brian Glenfeld, the evidence reflects that he was shot in the arm and chest while in the car. These shots were not fatal, although they caused profuse bleeding. After raping and killing Worley, Ferguson returned to the car and shot Glenfeld in the head. This was sufficient to support a finding of this aggravator.
There was also sufficient evidence in the Hialeah case to support the finding that the murder was committed to avoid arrest. See Swafford v. State, 533 So.2d 270 (Fla.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989). More importantly, both the heinous, atrocious, or cruel and the avoiding arrest aggravator were discussed by this Court on direct appeal, and neither was overturned. Ferguson, 417 So.2d at 636. Accordingly, it would have been reasonable for counsel to consider any argument on these aggravators to be futile and to refrain from making such arguments.
In support of his next claim, that if counsel had been effective Ferguson would have been given a remand for resentencing before a jury after certain aggravators were stricken on appeal, Ferguson cites Elledge v. State, 346 So.2d 998 (Fla.1977). Elledge is distinguishable from this case, and we have made it clear that a death sentence may be affirmed where an aggravator is stricken as long as the Court is convinced that the error was harmless, as was the case here. See Hamblen v. Dugger, 546 So.2d 1039, 1041 (Fla.1989) (distinguishing Elledge and noting appropriateness of harmless error analysis where aggravators are stricken).

Ferguson next argues that counsel was ineffective for failing to argue that the trial court should have sua sponte conducted a competency hearing in the middle of the Carol City trial when Ferguson began acting strangely. Since four experts had unanimously concluded only two weeks before the Carol City trial that Ferguson was competent, and three months after the Carol City trial another competency hearing was held and Ferguson was found to be competent, this claim would have been without merit, and counsel was not ineffective for failing to raise it. While Ferguson exhibited some strange behavior during his trial, none of it was of such magnitude that the failure to conduct yet another competency hearing would have been fundamental error.

We also reject Ferguson's claim that counsel was ineffective for failing to appeal the trial court's finding of competency in the Carol City trial. Three months after this trial there was a competency hearing which simultaneously served as a pretrial hearing for the upcoming Hialeah trial and a nunc pro tunc competency hearing for the Carol City case. The court's finding that Ferguson was competent was appealed in the Hialeah case, and his argument rejected. Ferguson, 417 So.2d at 634. The same argument would have been rejected had it been made in the other case.

Ferguson's argument that counsel was ineffective for failing to raise a proportionality argument is similarly without merit, as the death sentences are clearly proportionate. While Ferguson undoubtedly has some mental problems, he has murdered eight people, and all the murders had significant aggravation. We also reject Ferguson's related argument that this Court erred in failing to conduct an independent proportionality review. The mere fact that proportionality is not mentioned in the written opinion does not mean that no proportionality review was conducted. See Booker v. State, 441 So.2d 148, 153 (Fla.1983).

Ferguson next argues that appellate counsel was ineffective for failing to raise the issue of the separation of the Hialeah jury during deliberations. Such a claim is not cognizable in the absence of a contemporaneous objection by trial counsel, as long as adequate cautionary instructions are given to the jury. Pope v. State, 569 So.2d 1241, 1243-44 (Fla.1990). Here, there was no objection by trial counsel, and the court told the jury that they were not to discuss the case. This instruction in combination with the numerous prior instructions was adequate to ensure a fair trial. This claim is therefore without merit.

Ferguson next argues that counsel was ineffective for failing to have transcribed some portions of the record-voir dire, most of the charge conference, and the end of a discussion of whether Ferguson would testify. Had appellate counsel asserted error which went uncorrected because of the missing record, or had Ferguson pointed to errors in this petition, this claim may have had merit. However, Ferguson has now obtained a transcript of the voir dire and does not point to any portions of those transcripts which reveal error. As to those portions which are still not transcribed, Ferguson points to no specific error which occurred during these time periods. Under these circumstances, we reject this claim.

Ferguson's next asserted omission on the part of appellate counsel relates to his failure to raise allegedly improper comments by the prosecutor at the penalty phase of the Hialeah trial. None of these comments were objected to by trial counsel, so they were not preserved for appeal. Appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel's failure to object. See, e.g., Kelley v. Dugger, 597 So.2d 262, 263 (Fla.1992); Roberts v. State, 568 So.2d 1255, 1261 (Fla.1990). Even if this claim had been raised on direct appeal, we would have found it to be without merit. None of the comments rise to the level of fundamental error.
Finally, we find without merit Ferguson's claim that counsel should have appealed the trial court's denial of a motion for a change of venue in both trials. A motion for a change of venue is addressed to the trial court's sound discretion, and there has been no abuse of discretion demonstrated here. See, e.g., Davis v. State, 461 So.2d 67, 69 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). Further, the issue was not preserved for review in the Hialeah case because counsel never sought a ruling on his motion.

Having reviewed Ferguson's extensive claims of ineffective assistance of appellate counsel, we find that he has failed to establish either deficient performance or prejudice. We therefore reject this claim. For the foregoing reasons, Ferguson's petition for a writ of habeas corpus is denied. It is so ordered.

Background: Following governor's determination of sanity to be executed, capital murder defendant filed motion for stay of execution and hearing. The Circuit Court, Bradford County, David Allen Glant, J., entered order finding defendant sane to be executed. Defendant appealed.

Holdings: The Supreme Court held that: (1) evidence was sufficient to support circuit court's finding that defendant understood connection between his crime and punishment he was to receive for it, and (2) defendant was not deprived of full and fair hearing on issue of whether he was sane to be executed. Affirmed.

PER CURIAM.

John Errol Ferguson appeals an order entered by the Eighth Judicial Circuit Court finding him competent to be executed. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons expressed below, we affirm the circuit court's Order Finding John Errol Ferguson Sane to be Executed.

On September 5, 2012, Governor Rick Scott signed a death warrant for Ferguson and set the execution for Tuesday, October 16, 2012. On September 24, 2012, Ferguson submitted filings to the Governor, wherein he claimed that he is incompetent to be executed. As required by section 922.07, Florida Statutes (2012), the Governor temporarily stayed Ferguson's execution on September 26, 2012, and appointed a commission of three psychiatrists to examine Ferguson. As a group, the psychiatrists conducted their examination and issued a joint report declaring Ferguson sane to be executed. After receiving the report of the commission, the Governor determined that Ferguson had the mental capacity to understand the nature of the death penalty and the reasons why it was being imposed upon him. The Governor lifted the stay and the execution remained set for Tuesday, October 16, 2012.

On October 3, 2012, Ferguson filed a motion for stay and hearing after the Governor's determination of sanity to be executed in the Eighth Judicial Circuit pursuant to Florida Rule of Criminal Procedure 3.811(d) and 3.812. The circuit court issued an order setting the evidentiary hearing for October 9 and 10, 2012. The court then issued a second order staying Ferguson's execution until 4:00 p.m. Wednesday, October 10, 2012.
On October 8, 2012, Ferguson filed a motion to stay his execution with this Court. This Court denied the stay, but clarified that its scheduling order did not prohibit the circuit court from entering a longer stay if the circuit court deemed it necessary. Upon this clarification, the circuit court extended the stay until Friday, October 12, 2012. Ferguson filed another motion for stay with this Court on October 11, 2012. This Court granted the stay until October 18, 2012.

At the evidentiary hearing, held on October 9 and 10, 2012, the circuit court heard testimony from Dr. George Woods, Dr. Richard Rogers, Dr. Wade Myers, Dr. Tonia Werner, Sgt. Randall Mobley, Correctional Officer Jay Taylor, Sgt. Gerald Whitehead, Warden John Palmer, Assistant Warden Brad Whitehead, Jennifer Sagle, Dr. Enrique Suarez, and one of Ferguson's counsel who was present at the interview—Patricia Brannan. The experts testified regarding Ferguson's competency. The lay witnesses testified regarding their daily interactions with Ferguson and all noted that he was not in the habit of making unusual requests or of being uncooperative. After hearing the testimony, on October 12, 2012, the circuit court entered an Order Finding John Errol Ferguson Sane to be Executed. This is Ferguson's appeal, wherein Ferguson raises two issues.

Sanity to be Executed

Ferguson alleges that the circuit court improperly found him sane to be executed based on its finding that Ferguson's delusions are a manifestation of a normal Christian belief. Consequently, Ferguson argues that there is not competent, substantial evidence to support the circuit court's determination. Alternatively, Ferguson argues that the circuit court's determination was a misapplication of the standard pronounced in Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and that this Court's opinion in Provenzano v. State, 760 So.2d 137 (Fla.2000), is no longer good law. The State maintains that Ferguson is competent and that no evidence in the record supports his assertion that he is currently insane to be executed. The circuit court found “that though Ferguson does have a diagnosed mental illness, paranoid schizophrenia, there is no evidence that his mental illness interferes, in any way, with his ‘rational understanding’ of the fact of his pending execution and the reason for it.” Ferguson v. State, No. 04–2012–CA–000507 at 18 (Fla. 8th Cir. Oct. 12, 2012) (Order). Because the trial court specifically found that Ferguson suffers from mental illness and rejected the State's argument that Ferguson malingers, the narrow question for this Court is whether there is competent, substantial evidence to support the trial court's determination that Ferguson's mental illness does not interfere with his rational understanding of the fact of his pending execution. Whether Ferguson's convictions are representative of mainstream Christian principles or delusions that derive from his mental illness does not affect our inquiry. For the reasons expressed below, we find competent, substantial evidence to affirm the circuit court's order finding Ferguson sane to be executed.

“In order for insanity to bar execution, the defendant must lack the capacity to understand the nature of the death penalty and why it was imposed.” Johnston v. State, 27 So.3d 11, 26 n. 8 (Fla.) (citing § 922.07(3), Fla. Stat. (2009)), cert. denied, ––– U.S. ––––, 131 S.Ct. 459, 178 L.Ed.2d 292 (2010); Provenzano v. State, 760 So.2d 137, 140 (Fla.2000) (quoting Fla. R.Crim. P. 3.812(b) (“whether the prisoner lacks the mental capacity to understand the fact of the pending execution and the reason for it”)). The proper standard of review of a trial court's order pursuant to rule 3.812 is whether the record contains competent, substantial evidence to support the trial court's finding. See id.; Medina v. State, 690 So.2d 1255, 1256 (Fla.1997).
Florida's method of determining a prisoner's competence to be executed stems from the United States Supreme Court's opinion in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). In Ford, the United States Supreme Court, in a plurality decision, pronounced that “the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford, 477 U.S. at 409–410, 106 S.Ct. 2595. Ford had been sentenced to death in Florida, and his death warrant signed. At the time, when a prisoner raised a question of his sanity to be executed, the Governor alone made the determination and there was no review of the determination by the courts. The United States Supreme Court held that the Eighth Amendment entitled prisoners to an adversarial proceeding where a defendant can present evidence to support the assertion that the defendant is insane to be executed and cross-examine the witnesses presented by the State in support of the defendant's competence. In response, Florida promulgated Florida Rule of Criminal Procedure 3.812 (providing for a hearing on the prisoner's insanity to be executed where the court may admit evidence it deems relevant to the issues).

In Provenzano, we explained that Florida, through rule 3.812, adopted the standard promoted by Justice Powell in his concurring opinion in Ford. Provenzano, 760 So.2d at 140 (quoting Fla. R.Crim. P. 3.812(b)). We found that despite the case being troubling due to Provenzano's mental health problems, “in this context, the Eighth Amendment only requires that defendants be aware of the punishment they are about to suffer and why they are to suffer it.” Id. at 140 (citing Ford, 477 U.S. at 422, 106 S.Ct. 2595 (Powell, J., concurring)). Ferguson argues that the United States Supreme Court's decision in Panetti clarified the holding in Ford and constitutes a change in the standard to be applied in rule 3.812 proceedings to represent a stricter standard than that adopted by this Court in its decision in Provenzano. We disagree. The Panetti court explicitly declined to extend its ruling to all competency proceedings. Furthermore, to the extent that Panetti represents any change in the Court's jurisprudence, the change does not alter our decision in Provenzano.

The issue in Panetti was whether “[t]he state court's failure to provide the procedures mandated by Ford constituted an unreasonable application of clearly established law as determined by [the Supreme] Court.” Panetti, 551 U.S. at 948, 127 S.Ct. 2842. The Fifth Circuit Court of Appeals required only that Panetti knew the fact of his impending execution and the factual predicate for the execution. Panetti, 551 U.S. at 942, 127 S.Ct. 2842. Acknowledging that “[t]he opinions in Ford ... did not set forth a precise standard for competency,” the Court nevertheless found that the Fifth Circuit's standard was not sufficient. Panetti, 551 U.S. at 957–60, 127 S.Ct. 2842. The Court stated that “[a] prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it [and] Ford does not foreclose inquiry into the latter.” Panetti, 551 U.S. at 959, 127 S.Ct. 2842. The Court, accordingly, rejected the standard pronounced by the Fifth Circuit, but specified that it would “not attempt to set down a rule governing all competency determinations.” Panetti, 551 U.S. at 960–61, 127 S.Ct. 2842. Consequently, Panetti is a narrowly tailored decision that does not overturn this Court's decision in Provenzano.

Similar to the facts in our decision in Provenzano, there is evidence that Ferguson suffers from some mental illness. Specifically, the circuit court found that Ferguson has a documented history of paranoid schizophrenia. Further, the circuit court found “little evidence ... [that leads the circuit court] to believe that Ferguson's ‘Prince of God’ delusion is anything other than genuine belief.” Additionally, unlike the record in Provenzano, the circuit court here found a “lack of sufficient evidence of malingering.” However, the record also indicates that Ferguson understands what is taking place and why. Specifically, the record indicates that Ferguson is aware that he has never before had a death warrant signed on his behalf and that he would be the first person to receive Florida's current protocol of medications for lethal injection.

In this context, the Eighth Amendment requires only that defendants be aware of the punishment they are about to receive and the reason they are to receive it. See Ford, 477 U.S. at 422, 106 S.Ct. 2595 (Powell, J., concurring). Our decision in Provenzano requires that Ferguson understand the connection between his crime and the punishment he is to receive for it. Provenzano, 760 So.2d at 139. In finding Ferguson sane to be executed, the circuit court found that “Ferguson is aware that the State is executing him for the murders he committed and that he will physically die as a result of the execution. There is no evidence that in his current mental state Ferguson believes himself unable to die or that he is being executed for any reason other than the murders he was convicted of in 1978.” Order at 18. We find that there is competent, substantial evidence to support the circuit court's determination that Ferguson is sane to be executed.

Due Process

In his second argument on appeal, Ferguson alleges that he failed to receive a full and fair hearing because: (1) the State did not give him forewarning of its theory that his delusions constituted mainstream Christian beliefs; (2) he was not permitted to cross examine an expert witness; and (3) he was forced to proceed without a key witness. We have carefully reviewed the parties' arguments and the record in this case, and find each of these claims to be without merit.

Conclusion

For the foregoing reasons, we affirm the order of the circuit court finding Ferguson sane to be executed. No rehearing will be entertained by this Court. The mandate shall issue immediately. We vacate the stay previously entered. It is so ordered.

Background: Following affirmance on direct appeal of petitioner's multiple state court convictions for first-degree murder, 417 So.2d 631 and 417 So.2d 639, and affirmance of his death sentences, 474 So.2d 208, he filed petition for writ of habeas corpus. The United States District Court for the Southern District of Florida, No. 95-00573-CV-DTKH, Daniel T.K. Hurley, J., denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Birch, Circuit Judge, held that:
(1) petitioner was not deprived of effective assistance of counsel during sentencing phase of trial;
(2) Hitchcock error in jury instruction given in penalty phase was harmless;
(3) failure of state to disclose that testifying detectives were under investigation for drug trafficking, conspiracy, theft, and civil rights violations did not violate Brady;
(4) claim that prosecutor knowingly used perjured testimony from police officer was procedurally barred;
(5) appellate counsel was not ineffective for failing to raise claim regarding failure to sequester jury during deliberations;
(6) due process claim that evidentiary hearing was necessary in death penalty case so that substitute judge in resentencing proceeding could properly evaluate aggravation and mitigation factors was procedurally barred; and
(7) petitioner failed to show that prosecutor systematically used peremptory strikes against jurors based on their race. Affirmed.

BIRCH, Circuit Judge:

John Errol Ferguson (“Ferguson”), a Florida prisoner convicted of murder and sentenced to death, filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254 in which he made at least eleven claims. He also moved to stay the federal habeas proceedings based on his alleged incompetency, a motion denied by the district court, which held an evidentiary hearing on the issue and found him competent to proceed with the petition. The court subsequently denied Ferguson's petition in its entirety, but granted a certificate of appealability (“COA”) on all of the issues raised therein. Ferguson has appealed the district court's dismissal of nine of his claims and also challenges that court's denial of his motion to stay the proceedings. The State of Florida filed a cross-appeal regarding the district court's decision to hold an evidentiary hearing on the issue of Ferguson's competency. After thoroughly reviewing the record and the parties' briefs and hearing oral argument, we AFFIRM the district court's denial of Ferguson's petition and motion to stay.

I. BACKGROUND
A. Factual Background

Ferguson received the death penalty in two Florida state cases in which he was convicted of a total of eight counts of first-degree murder. Six of those counts stemmed from his first trial, which dealt with events that took place in Carol City, Florida in July 1977. The second trial, which involved the other two murder counts, addressed crimes occurring in Hialeah, Florida in January 1978.

On the evening of 27 July 1977, Ferguson, posing as a Florida Power and Light employee, received permission from Margaret Wooden to enter her home. After checking several rooms, he drew a gun, tied and blindfolded her, and let into the house two men who joined him in looking for drugs and money. About two hours later, six of Wooden's friends, including the homeowner, Livingston Stocker, came to the house and were searched, tied, and blindfolded by Ferguson and his accomplices. Shortly thereafter, Wooden's boyfriend, Michael Miller, entered the house and also was bound and searched. Miller and Wooden eventually were placed in the bedroom, and the six other bound friends were in the living room.
At some point, a mask on one of Ferguson's friends fell and revealed his face. At the time, Wooden and Miller were kneeling on the floor with their upper bodies sprawled across the bed. Wooden heard shots from the living room, saw a pillow coming toward her head, and then was shot. She witnessed Miller being fatally shot as well. Wooden did not see the shooter, though she did hear Ferguson run out of the room. She managed to escape and ran to a neighbor's house to call the police. When the police arrived, they found six dead bodies, all of whom had their hands tied behind their backs and had been shot in the back of the head. Only two of the victims, Wooden and Johnnie Hall, survived. Hall testified at Ferguson's trial about the methodical execution of the other victims.

2. The Hialeah Murders

On the evening of 8 January 1978, Brian Glenfeld and Belinda Worley, both seventeen, left a Youth-for-Christ meeting in Hialeah, Florida. They were supposed to meet friends at an ice cream parlor, but never arrived. The next morning, two passersby discovered their bodies in a nearby wooded area. Glenfeld had been killed by a bullet to the head and also had been shot in the chest and arm. Worley was found several hundred yards away under a dense growth. All of her clothes, except for her jeans, were next to her body, and she had been shot in the back of the head. An autopsy revealed that she had been raped. At trial, there was testimony that she had been wearing jewelry, but none was found with the bodies. The cash from Glenfeld's wallet, which was found in Worley's purse near her body, also had been removed.
On 5 April 1978, police arrested Ferguson at his apartment pursuant to a warrant for unlawful flight to avoid prosecution in connection with the Carol City murders. At the time of his arrest, police found in his possession a .357 magnum, which was capable of firing .38 caliber bullets, the same kind used to kill Glenfeld and Worley. The gun was registered to Stocker, one of the victims in the Carol City murders. At some point after Ferguson's arrest, he confessed to killing “the two kids,” i.e., Glenfeld and Worley.

B. Procedural Background
1. Trials and Direct Appeals

Ferguson was indicted in July 1977 for, inter alia, six counts of first-degree murder in connection with the Carol City murders, and in January 1978 for, inter alia, two counts of first-degree murder in connection with the Hialeah murders. He was not incarcerated until his arrest for the Hialeah murders. Both cases went to trial in the Circuit Court for the Eleventh Judicial Circuit of Florida and were presided over by the same judge. Ferguson was tried alone for the Carol City murders and convicted on all counts, except for one of the armed robbery counts. After an advisory sentencing hearing, the jury recommended death. The judge followed the jury's recommendation and imposed six death sentences, along with two consecutive sentences of thirty years of imprisonment for the attempted murders of Hall and Woodson and three sentences of life imprisonment for attempted robberies of three of the victims. At the Hialeah trial, Ferguson mounted an unsuccessful insanity defense and was convicted on two counts of first-degree murder. The jury recommended the death penalty, and the judge imposed two death sentences.
In separate opinions on direct appeal, the Florida Supreme Court affirmed all of the convictions in both cases but vacated and remanded the death sentences due to sentencing errors. With respect to the Carol City case, the court found that the trial judge had relied on improper aggravating factors. For the Hialeah trial, the court found that the judge had not considered statutory mitigating factors. The Florida Supreme Court noted in both cases that an additional jury sentence advisory verdict would be unnecessary on remand.
A different judge heard the cases on remand because the original trial judge had left the bench in the interim. Without holding an evidentiary hearing or impaneling a jury to make recommendations, the presiding judge imposed eight death sentences for the murders in the two cases. The Florida Supreme Court affirmed those sentences in a consolidated appeal. See Ferguson v. State, 474 So.2d 208 (Fla.1985) ( Ferguson III).

2. Florida Post-Conviction & Habeas Proceedings

In October 1987, Ferguson and his mother, Dorothy Ferguson, acting as next friend, filed a timely motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which set forth six claims. For the purposes of this appeal, the relevant claims were an ineffective assistance of counsel (“IAC”) claim based on trial counsel's failure to investigate and present evidence with respect to statutory mitigating factors and a HitchcockFN2 claim based on the trial court's jury instructions regarding mitigating factors. Shortly thereafter, Ferguson moved to stay the proceedings on the grounds that he was incompetent to participate in them or to assist counsel by answering questions. The circuit court denied this motion in February 1989.
FN2. In Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987), the Supreme Court found unconstitutional instructions to the jury that indicated that the jury could not consider non-statutory mitigating circumstances.

Ferguson's counsel subsequently moved to disqualify the post-conviction judge based on ex parte contacts between the judge and the prosecutors. The circuit court denied this motion because it was untimely, was not in compliance with Florida procedural requirements, and did not provide an adequate factual foundation for the belief that the judge would be prejudiced against Ferguson. Ferguson's counsel then filed a petition for a writ of prohibition based on ex parte contacts between the judge and the prosecutors. The Florida Supreme Court denied this petition and the United States Supreme Court denied the subsequent petition for a writ of certiorari on the issue. See Ferguson v. Snyder, 493 U.S. 945, 110 S.Ct. 353, 354, 107 L.Ed.2d 341 (1989) (mem.) ( Snyder I); Ferguson v. Snyder, 548 So.2d 662 (Fla.1989) (table) ( Snyder II).

In September 1989, Ferguson filed a supplement to his 3.850 petition, in which he raised ten claims, including a claim regarding racially discriminatory peremptory challenges and a BradyFN3 claim regarding improper prosecutorial withholding of evidence. In response to a motion by the State, the circuit court struck many of the claims in Ferguson's original and supplemental petitions, including his peremptory challenge claim.FN4 The circuit court held an evidentiary hearing in May 1990 on the remaining claims and issued an order the following month denying the remainder of Ferguson's 3.850 motion. One month later, Ferguson moved to supplement his 3.850 petition with an additional ground for relief based on the State's failure to correct false testimony presented at the sentencing phase of the Carol City trial. The circuit court dismissed this motion as untimely. On appeal, the Florida Supreme Court affirmed the circuit court's denial of the 3.850 motion. See Ferguson v. State, 593 So.2d 508, 513 (Fla.1992) ( Ferguson IV).

FN3. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), “places an affirmative duty upon the state to reveal any ‘material’ evidence in its possession that would tend to exculpate a defendant.” Breedlove v. Moore, 279 F.3d 952, 961 (11th Cir.2002) ( Breedlove I) (quotation marks and citation omitted). Under Brady, a state would violate due process if it did not disclose materially exculpatory information in its possession, even if it acted in good faith. See id.
FN4. The court also struck a Hitchcock claim Ferguson made in his supplemental motion, part of which addressed the issue of whether the resentencing court erred by not impaneling a new jury.

Ferguson also petitioned the Florida Supreme Court for a writ of habeas corpus around the same time, which the court denied. See Ferguson v. Singletary, 632 So.2d 53, 59 (Fla.1993) ( Ferguson V). In his petition, he raised four claims, only one of which is relevant for this appeal-that he was resentenced without impaneling a new jury or holding an evidentiary hearing. The Florida Supreme Court found that Ferguson had failed to preserve this issue before the circuit court and thus was procedurally barred from raising it in his petition.

3. Federal Habeas Proceedings

Ferguson, along with his mother as next friend, filed his first federal habeas petition, the subject of this action, in the United States District Court for the Northern District of Florida in March 1995. He concurrently moved to stay the federal habeas proceedings due to his alleged incompetence, a motion which the district court denied in March 1999. In July 1999, Ferguson filed a motion in the Florida Circuit Court seeking to reinstate several of the claims he raised in his 3.850 motion. He based his motion on Carter v. State, 706 So.2d 873 (Fla.1997) (per curiam), which required courts to hold competency hearings in post-conviction proceedings when certain circumstances are present. Ferguson asserted that this constituted a fundamental change in the law and, as a result, applied retroactively. The circuit court denied his motion, and the Florida Supreme Court affirmed. See Ferguson v. State, 789 So.2d 306, 315 (Fla.2001) ( Ferguson VI). The latter found that Carter applied retroactively but concluded that the circuit court did not abuse its discretion in finding Ferguson competent to proceed with his 3.850 petition.
In anticipation of filing the motion to reinstate his 3.850 claims, Ferguson asked the federal district court in July 1999 to stay the proceedings so that he could exhaust state remedies. The district court granted the stay in May 2000, which it lifted in August 2001. As part of the latter order, the court permitted Ferguson to filed an amended habeas petition to address changes in both the law and his mental state. In August 2003, the district court again granted him leave to file an amended petition to reflect changes in the law. FN5 Ferguson filed a second amended petition a month later and also moved to stay the proceedings because of his alleged incompetence.
FN5. During the period between these last two orders, the district judge originally presiding over this case died and was replaced by the judge who ultimately denied the petition.

In July 2004, the district court scheduled an evidentiary hearing to determine whether Ferguson was competent to assist counsel in the habeas proceedings. A five-day hearing was held in December 2004, at which six expert witnesses testified regarding Ferguson's mental state. On 19 May 2005, the district court issued an order finding Ferguson competent to proceed and denying the motion to stay the proceedings. That same day, the court also issued an order denying Ferguson's second amended habeas petition. Ferguson appealed both of these decisions, and the State cross-appealed the district court's decision to grant an evidentiary hearing. The district court granted Ferguson's motion for a COA “in its entirety” for the reasons articulated in Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). R4-113.

II. DISCUSSION

On appeal, Ferguson asserts that the district court erred in denying nine claims in his habeas petition relating to various aspects of his trial, resentencing, and state post-conviction proceedings. He also maintains that the court, in finding him competent to proceed with his federal habeas claim and denying his motion to stay, violated his right not to proceed while incompetent. The State, in its cross-appeal, argues that the district court improperly held an evidentiary hearing to determine Ferguson's competency. We address these issues in turn.

A. Legal Standards Applicable to This Appeal

Because Ferguson filed his petition in 1995, one year prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we apply pre-AEDPA law to his claim. See Lindh v. Murphy, 521 U.S. 320, 326-27, 336, 117 S.Ct. 2059, 2063, 2068, 138 L.Ed.2d 481 (1997). However, since he initiated this appeal after the effective date of AEDPA, all questions of appellate procedure are governed by post-AEDPA law. See Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 1602-03, 146 L.Ed.2d 542 (2000).
[3] [4] “When reviewing the district court's denial of a habeas petition, we review questions of law and mixed questions of law and fact de novo, and findings of fact for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir.2000) (per curiam). A state court's findings of fact are entitled to a presumption of correctness, unless one of the exceptions discussed in § 2254(d) would be applicable.FN6 See Hardwick v. Crosby, 320 F.3d 1127, 1158 (11th Cir.2003). We also do not consider issues or arguments raised for the first time on appeal. See Nyland, 216 F.3d at 1266.
FN6. No presumption of correctness is accorded where: (1) the merits of a factual dispute were not resolved in a state court hearing; (2) the state court's factfinding procedure was inadequate to afford a full and fair hearing; (3) the material facts were not developed adequately during the state court hearing; (4) the state court lacked jurisdiction over the subject matter or applicant; (5) the state court failed to provide counsel to an indigent applicant; (6) the applicant “did not receive a full, fair, and adequate hearing in the State court proceeding;” (7) “the applicant was otherwise denied due process of law in the State court proceeding;” (8) the record considered as a whole does not fairly support the factual determination. 28 U.S.C. § 2254(d) (1995 ed.). We “may not consider claims that have been defaulted in state court pursuant to an adequate and independent state procedural rule, unless the petitioner can show cause for the default and resulting prejudice, or a fundamental miscarriage of justice.” Zeigler v. Crosby, 345 F.3d 1300, 1304 (11th Cir.2003) (per curiam) (quotation marks and citation omitted). A claim also would be “procedurally defaulted if the petitioner fails to raise the claim in state court and it is clear from state law that any future attempts at exhaustion would be futile.” Id. (quotation marks and citation omitted). We defer to the state court's findings regarding procedural default. See id.
We review the decision to grant or deny an evidentiary hearing for abuse of discretion. See Kelley v. Secretary for the Dep't of Corr., 377 F.3d 1317, 1333 (11th Cir.2004). For pre-AEDPA suits, we have held that a district court must hold an evidentiary hearing if: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 1334 (quotation marks and citation omitted).

B. Ineffective Assistance of Counsel During Penalty Phase

Ferguson asserts that he was denied the effective assistance of counsel during the sentencing phase of both of his trials because his attorneys failed to investigate and present mitigating evidence regarding his family background and history of mental illness. He contends that his counsel failed to pursue all such evidence that reasonably could have been obtained and thus did not conduct the kind of reasonable investigation contemplated in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He maintains that this failure was highly prejudicial because of the compelling nature of the undiscovered mitigating evidence.
Ferguson cites a number of relevant facts of which his attorneys were not aware: that he was raised in extreme poverty and had no running water or electricity at times; that he had an alcoholic father who died when Ferguson was thirteen years old, that he had to deal with his mother's abusive boyfriends; and that, at age twenty-one, he was shot four times and almost killed by a police officer. He also asserts that he repeatedly was diagnosed as suffering from paranoid schizophrenia, was placed in multiple mental hospitals during the late 1960s and early 1970s, was twice found not guilty by reason of insanity, and was examined by multiple doctors in the years preceding the Carol City and Hialeah murders, all of whom diagnosed him as schizophrenic, psychotic, or hallucinating.

We analyze IAC claims under the two-prong test established in Strickland, which requires us first to determine whether counsel's performance “fell below an objective standard of reasonableness” and then to decide whether this deficient representation prejudiced the petitioner's defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In assessing the first prong of the Strickland test, we apply a “strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment.” Williams v. Allen, 542 F.3d 1326, 1337 (11th Cir.2008) (quotation marks and citation omitted). For an attorney's performance to be unreasonable, it must fall “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. We have noted that an attorney's duty to conduct a reasonable investigation includes looking at a defendant's background for possible mitigating evidence. See Williams, 542 F.3d at 1337. Though “[t]his duty does not necessarily require counsel to investigate every evidentiary lead,” an attorney's “decision to limit an investigation must flow from an informed judgment.” Id. (quotation marks and citation omitted). As a result, when evaluating the reasonableness of an attorney's investigation we “must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527, 123 S.Ct. at 2538.

With respect to the prejudice prong of the Strickland test, we focus on whether the petitioner has established “that there is a reasonable probability that, but for counsel's unprofessional errors, the result in the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. For a probability to be “reasonable” it must be “sufficient to undermine confidence in the outcome” of the proceeding. Id. at 694, 104 S.Ct. at 2068. We must consider the totality of the evidence to determine whether the petitioner was prejudiced by counsel's errors. See Williams, 542 F.3d at 1342.

1. The Carol City Trial

Ferguson maintains that the performance of his counsel in the Carol City case, Fred Robbins, was deficient because Robbins conducted an inadequate investigation into potential mitigating evidence regarding Ferguson's mental history and family background. According to Ferguson, Robbins's mental health investigation consisted solely of reading four reports, written in 1978, that discussed Ferguson's competence to stand trial. Those reports noted that Ferguson had undergone psychiatric examinations during the early 1970s; however, Robbins did not attempt to locate records from those examinations. Additionally, Robbins did not examine Ferguson's criminal records, which would have shown that Ferguson twice had been found not guilty of various crimes for reason of insanity. Ferguson contends that Robbins's family history investigation was equally unreasonable. Robbins spoke with Ferguson's mother and sister but never asked them about his upbringing, and Robbins's conversation with Ferguson's sister addressed only Robbins's potential retention as counsel. Robbins also apparently made no attempt to locate public records about Ferguson or to contact his siblings, even though they lived nearby. FN7. Ferguson also notes that Robbins called just one witness during the sentencing phase, Ferguson's mother, and asked her very few questions, most of which were unilluminating. The transcript of her testimony, which covers less than three pages, confirms this description. She provided very basic background information on Ferguson (i.e., his employment and interests at the time of the Carol City murders), noted that he had always been a good son to her, and confirmed that he had mental problems and had been in a mental hospital, but did not elaborate on the latter two points.

The Florida Supreme Court rejected this claim during the 3.850 proceedings. The court noted that, although Robbins had “not exhaust[ed] all available sources of information ..., this was not a case in which the attorney conducted only minimal investigation.” Ferguson IV, 593 So.2d at 510. It found that Robbins was aware of Ferguson's mental history and made the tactical decision not to call as witnesses those doctors who had investigated Ferguson. The court found this strategy to be reasonable since presenting such evidence could have opened the door to damaging rebuttal evidence from the State, i.e., that Ferguson had sociopathic tendencies and was exaggerating his symptoms. It therefore concluded that Ferguson had not satisfied his burden of showing either deficient performance or prejudice under the Strickland test. See id. at 511-12.
The district court reached the same conclusion in the federal habeas proceedings. It found that Robbins had conducted some investigation into Ferguson's history of mental illness and, based on that investigation, made “a reasonable tactical decision ... to avoid potentially greater prejudice from damaging information that would have been introduced to the jury regarding [Ferguson's] malingering and anti-social personality disorder.” R4-108 at 32. The court likewise found that the Robbins had conducted a “reasonable investigation into [Ferguson's] background” and made a “reasonable tactical decision” in light of this investigation to focus on creating lingering doubt about his guilt. Id. It also determined that, even if the investigation was unreasonable, any failure in that regard would not undermine confidence in the outcome of the proceedings given the overwhelming aggravating factors involved. The court therefore concluded that Ferguson had not met the second prong of the Strickland test.FN8
FN8. Although the district court's findings indicate that Ferguson had not met the first prong of the Strickland standard, the court never explicitly concluded that.

Even assuming arguendo that Robbins's performance was deficient, Ferguson has not shown prejudice resulting from that deficient performance. The resentencing judge found five aggravating circumstances in this case: (1) Ferguson previously had been convicted of “three felonies involving the use of, or threat of, violence to some personFN9;” (2) the murders were committed while Ferguson “was engaged in the commission of multiple robberies;” (3) the murders were committed “for the purpose of avoiding or preventing a lawful arrest;” (4) the murders were “especially heinous, atrocious and cruel;” and (5) the crimes involved homicides “committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” FN10 App. MM, Vol. 3 at 1-6.FN11 By comparison, the only possible mitigating circumstance identified by any of the courts assessing Ferguson's case was that there was some evidence to indicate that Ferguson might have been suffering severe mental disturbance at the time of murders and that he had an impaired capacity to appreciate the criminality of his conduct.FN12 All of these findings are entitled to a presumption of correctness, and the parties identify no basis for questioning this presumption. See Hardwick, 320 F.3d at 1158.

FN9. The felonies were a 1965 conviction for assault with intent to commit rape, a 1971 conviction for robbery, and a 1976 conviction for violent resistance to a police officer.
FN10. The fifth factor was addressed for the first time on resentencing, though the Florida Supreme Court found no error in the circuit court's reliance on it. The court previously had found the other four factors to be present during the direct appeal. The original trial court found two other aggravating circumstances to be present-that Ferguson committed the crimes while under a sentence of imprisonment and that, in committing the crimes, Ferguson knowingly created a great risk of death to a number of people. However, the Florida Supreme Court negated both of those findings on direct appeal.
FN11. The record in this case consists of the district court filings along with the various state court filings, the majority of which were filed as exhibits to R2-53. The state court filings were subdivided into various letter-designated appendices, ranging from A to NN. Appendices A to JJ are the briefs, petitions, and opinions from those various proceedings. Appendices KK and LL are the records from the direct appeal of the Carol City and Hialeah trials, respectively. Appendix MM is the record from the resentencing, and Appendix NN the record from the state post-conviction, or 3.850, proceedings. Within this opinion, references to documents in R2-53 will refer to the appendix and page number, i.e., “App. NN at 1000.” Because the pleadings and transcripts in Appendices KK, LL, and MM are collected in separately paginated volumes, references to documents in those appendices will also list the volume number, i.e., “App. MM, Vol. 1 at 4.”
FN12. This finding was made by the circuit court on remand and referenced in the Florida Supreme Court's opinion on appeal from resentencing. The Florida Supreme Court never adopted this finding, however, and, in fact questioned its veracity.

In our view, the aggravating circumstances far outweigh any mitigating factors, even taking into account the evidence that Robbins failed to uncover. The facts of this case are extreme, including multiple execution-style killings after a prolonged period in which the victims were bound and blindfolded. We agree with the resentencing court that “[t]he entire action of [Ferguson] and his co-conspirators reflects not only an absolute lack of concern for human life or dignity but also a barbaric cruelty.” App. MM, Vol. 3 at 6. As a result, we do not believe it is reasonably probable that the evidence Ferguson cites would lead a jury to disregard such cruel circumstances and impose a different sentence. We thus find that Ferguson has not established prejudice from this ineffective assistance and therefore conclude that the district court correctly denied habeas relief with respect to this part of Ferguson's IAC claim.

2. The Hialeah Trial

Ferguson also contends that his counsel's performance during the sentencing phase of the Hialeah trial was deficient. He asserts that Bruce Phelps, the attorney in charge of his penalty phase presentation, made no meaningful effort to investigate Ferguson's family history. In support of this argument, Ferguson cites Phelps's failure to discuss potential mitigating evidence with Ferguson's siblings and to recall Ferguson's mother as a witness during sentencing after she broke down on the witness stand before he could elicit any meaningful testimony.FN13 Ferguson also maintains that Phelps was deficient in not presenting evidence of Ferguson's mental illness during sentencing. Ferguson concedes that Phelps put forth mental health history evidence during the guilt phase of the trial as part of an unsuccessful insanity defense. Nevertheless, Ferguson contends that Phelps had a responsibility to recall the mental health experts so they could speak directly to the statutory mitigating factors because of the inherent difference between those factors and the requirements needed to make out an insanity defense. Furthermore, Ferguson maintains that this deficiency prejudiced his case, particularly since at least two jurors voted against the death penalty, even in the absence of the missing evidence.
FN13. Ferguson's mother was the sole witness called by the defense during sentencing.

The Florida Supreme Court rejected Ferguson's arguments during the 3.850 proceedings, finding both that Phelps's performance had not been deficient and that there was no resulting prejudice to Ferguson even assuming deficiency. The court noted that, although Phelps failed to present any mitigating evidence regarding Ferguson's mental history during the penalty phase, it was reasonable to assume that there would have been no net benefit to presenting more mental health evidence since there already had been testimony about Ferguson's mental health during the guilt phase. The court also noted that Phelps had spoken with family members and found that his failure to recall Ferguson's mother was “reasonable in light of her emotional state.” Ferguson IV, 593 So.2d at 511.
The district court in the federal habeas proceedings reached a similar conclusion. It found that Ferguson's counsel made a “tactical decision to focus on mental health mitigators during sentencing[ ] and to appeal to the jury's sense of sympathy for [Ferguson's] mental health condition.” R4-108 at 34. The court deemed it reasonable, in light of this trial strategy, for Ferguson's counsel not to recall his mother or to reintroduce potentially duplicative mental health evidence during the penalty phase of the trial. In addition, the court noted that there was no reasonable probability that any juror would find that the unpresented mitigating evidence outweighed the “overwhelming aggravating factors” present in the case.FN14 Id. at 35.
FN14. As with the district court's ruling on IAC in the Carol City case, it made no explicit finding that Ferguson had not met the first Strickland prong, although the cited evidence would indicate that it tacitly reached that conclusion.

As in the Carol City trial, even if we assume that Ferguson's Hialeah trial counsel was deficient during the penalty phase, it is not reasonably probable that the jury would have imposed a different sentence had they considered the missing mitigation evidence. On resentencing, the circuit court found six aggravating factors: (1) Ferguson previously had been convicted of four felonies involving the use or threat of violenceFN15; (2) the murders occurred while Ferguson was “engaged in the commission of rape and robbery;” (3) the murders were committed to avoid a lawful arrest; (4) the murders were “committed for pecuniary gain;” (5) the murders were “especially heinous, atrocious, and cruel;” and (6) Ferguson's crimes were committed “in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.”FN16 App. MM, Vol. 3 at 13-16. The only potential mitigating factor the court identified was that Ferguson might have been suffering from extreme mental disturbance and been impaired in his ability to appreciate the criminality of his conduct.

FN15. These are the three felonies described supra n. 10, along with the Carol City murders. FN16. As in the Carol City case, the “cold, calculated, and premeditated” factor was addressed for the first time on resentencing, though the Florida Supreme Court found no error in the circuit court's reliance on it. The original trial court also found a fifth aggravating factor, that Ferguson committed the crimes while under a sentence of imprisonment; however, the Florida Supreme Court overturned this finding since he was not confined in prison at the time and was not supposed to be.

We find that the aggravating factors significantly outweighed any mitigating evidence, including that which was not presented to the jury. The facts of the Hialeah murders are just as cruel and shocking as those of the Carol City killings. One of the victims, Worley, suffered extreme physical abuse, including being apparently raped, prior to being shot in the head and left partially nude by the roadside. The other victim, Glenfeld, was shot twice, both before and after Worley had been sexually assaulted, and murdered. Admittedly, at least two jurors decided not to impose the death penalty even in the face of such circumstances.FN17 Nevertheless, the missing evidence likely would not have changed the outcome. Notably, most of the evidence regarding Ferguson's medical background already had been presented during the guilt phase of the trial, so the jury considered that evidence in sentencing him to death. The missing evidence thus primarily involved Ferguson's family history. Although it is possible that evidence of Ferguson's mental history might have caused some jurors to recommend a sentence rather than death, we do not find that this was reasonably probable given the wealth of aggravating circumstances. See Parker v. Secretary for the Dep't of Corr., 331 F.3d 764, 783 & n. 16 (11th Cir.2003) (noting that the proper standard of review is “whether the jury's failure to hear the mitigating evidence undermines the confidence in its verdict, thus demonstrating a reasonable probability of a different result” rather than whether the result “would have been different absent the deficient performance”) (alterations, quotation marks, and citation omitted). Accordingly, we find that Ferguson has not met the prejudice prong and conclude that the district court correctly denied Ferguson habeas relief with respect to his IAC claim regarding the penalty phase of the Hialeah trial.FN18

FN17. The actual number of jurors voting against the death penalty is unknown. At trial, the court began polling the jurors to confirm that the majority of the jury had voted to sentence Ferguson to death. Two of the jurors misunderstood and indicated that they personally had voted against a sentence of death; however, the court corrected this erroneous assumption before other jurors had an opportunity to signal their vote. FN18. Ferguson also requests an evidentiary hearing on the IAC issue because the record did not support the state courts' factual determinations regarding the strategic intent of counsel in both cases. See Kelley, 377 F.3d at 1334. In this case, the record provides a sufficient basis for the state courts' findings and an evidentiary hearing would be unnecessary.

C. Hitchcock Error
Ferguson contends that the judge's instructions to the jury at both the Hialeah and Carol City trials limited the jury's ability to consider non-statutory mitigating factors, in violation of Hitchcock. He maintains that such limitation thus denied him a fair sentencing in both cases. This claim requires us to determine first whether a Hitchcock error occurred and then whether any such error was harmless.
We have noted that, “[a]lthough whether a Hitchcock error occurred is a legal question, it is almost entirely dependent upon the answer to a question of fact: did the sentencing judge consider any and all nonstatutory mitigating circumstance evidence that was presented to him?” Quince v. Crosby, 360 F.3d 1259, 1266 (11th Cir.2004) (quotation marks and citation omitted). Accordingly, we have deemed statements by the Florida Supreme Court “that the sentencing judge did not limit his consideration to only statutory mitigating circumstances” to be findings of fact that, for pre-AEDPA cases, should be upheld if it “is fairly supported by the record.” Id. at 1267. Ferguson asserts that this standard is inapplicable here, because the issue is whether the jury, not the judge, limited its consideration to statutory mitigating factors, a question for which there would be no factual basis because the jury does not make written findings of fact. He suggests that we instead are analyzing the propriety of jury instructions, which would be a question of law subject to de novo review. See United States v. Drury, 396 F.3d 1303, 1313 (11th Cir.2005).

We believe the correct approach is to treat Ferguson's claim as raising a mixed question of law and fact. The validity of the jury instructions under Hitchcock would be a legal question. However, determining what the jury relied on in sentencing Ferguson entails a factual inquiry looking solely at the text of the instructions. Admittedly, since the jury does not have to make written findings, we cannot say for certain whether jurors actually limited their consideration to statutory mitigating factors. Nevertheless, we deem it appropriate to assume that, in sentencing Ferguson, the jury followed the court's instructions and that, as a factual matter, the scope of its analysis would reflect how a reasonable person would view the instructions. See United States v. Siegelman, 561 F.3d 1215, 1239 (11th Cir.2009) (per curiam) (“The jury is presumed to follow the district court's instructions.”). We therefore evaluate de novo the issue of whether a Hitchcock error occurred. See Nyland, 216 F.3d at 1266. In so doing, we must examine the totality of the circumstances in which the instructions were given. See Card v. Dugger, 911 F.2d 1494, 1522 (11th Cir.1990).

Even if we find a Hitchcock error to have occurred here, we can still deny Ferguson's claims if we determine that the error was harmless. Whether an error was harmless is a mixed question of law and fact that we review de novo. See Smith v. Singletary, 61 F.3d 815, 817 (11th Cir.1995) (per curiam). For Hitchcock errors, we apply the harmlessness standard articulated in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).FN19 See Sims v. Singletary, 155 F.3d 1297, 1315 (11th Cir.1998). In so doing, we focus on “whether the error had substantial and injurious effect or influence in determining the jury's verdict.” Id. (quotation marks and citations omitted). For the error not to have been harmless, there must be “more than a reasonable possibility that the error contributed to the sentence.” Horsley v. State of Ala., 45 F.3d 1486, 1493 (11th Cir.1995).
FN19. The district court appears to have evaluated harmless error under the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), i.e., whether an error was “harmless beyond a reasonable doubt.” See Sims, 155 F.3d at 1315 (quotation marks and citation omitted). However, in Brecht, the Court concluded that the Chapman standard did not apply to habeas review, and instead substituted the “substantial and injurious effect” test. See id. (quotation marks and citation omitted).

1. The Carol City Trial

At the beginning of the sentencing phase of the Carol City trial, the judge told the members of the jury that he later would instruct them as to the mitigation factors that they “may consider.” App. KK, Vol. 4 at 1023. After closing arguments, he stated that “[t]he mitigating circumstances you may consider, if established by the evidence, are these” and then listed the statutory mitigating factors. Id. at 1074-75. He then described the standard of proof for aggravating factors and told the jurors that, although they were limited to considering only the aggravating circumstances he had listed, there was “no such limitation upon the mitigating factors” that could be considered. Id. at 1075.
Ferguson contends that he was denied a fair sentencing at the trial because these instructions unconstitutionally precluded the jury from considering non-statutory mitigating evidence in deciding whether to impose the death penalty, in violation of Hitchcock. He asserts that any error from the court's earlier instructions was not cured by the judge's later statement indicating that there was no limitation on the mitigating factors. In addition, Ferguson notes that the prosecutor made comments during closing arguments that could be interpreted as supporting the notion that only statutory mitigating factors could be considered.FN20
FN20. Prior to the judge's instructions, the prosecutor told the jury that “the Court has enumerated what mitigating factors should apply in this case ..., and you are bound by this law, and the judge will tell you so.” App. KK, Vol. 4 at 1060. The prosecutor then described the statutory mitigating factors and stated, “Those are the circumstances that you have to consider, and if those circumstances apply in this case, you must follow the law.” Id. at 1062.

Both the state courts and district court rejected this claim. In the 3.850 proceedings, the Florida Supreme Court found that there had been no Hitchcock error because the trial judge's later instruction “clearly” informed the jurors “that they were not limited to consideration of the statutory mitigating circumstances.” Ferguson IV, 593 So.2d at 512. Because it made this finding, the court did not address the issue of harmless error. On federal habeas review, the district court determined that the Florida Supreme Court's statements regarding whether the sentencing judge limited consideration to statutory mitigating factors constituted findings of fact. Since the record supported the Florida Supreme Court's finding that there had not been such a limitation in the Carol City trial, the court denied Ferguson's claim. Neither the Florida Supreme nor the federal district court addressed the issue of harmless error.FN21

FN21. The circuit court in the 3.850 proceedings found both that there had been no Hitchcock error and that, even if there had been such an error, it was harmless because the non-statutory mitigating evidence was insignificant in comparison to the overwhelming aggravating circumstances.
Ferguson maintains that the court's instructions were contradictory and that the court made no effort to indicate which instruction should control or to explain the discrepancy in its statements. He cites Hall v. Kelso, 892 F.2d 1541, 1545 (11th Cir.1990), for the principle that a later, correct instruction cannot cure an earlier, contradictory instruction in the absence of a clarifying statement by the court. It could be argued that the court's instructions were more complementary than contradictory, which would make Hall inapplicable here. Under this reading, the court's initial instruction merely would indicate that jurors could consider the statutory factors described thereafter instead of limiting the jury's inquiry to solely those factors. The later instruction would inform the jurors that they could consider any non-statutory mitigating factors as well, and thus would have added to the more restrained scope of inquiry suggested by the earlier instruction.FN22 Any infirmities in the initial instruction thus would have been cured by the court's subsequent statement.

FN22. In Sims, we found no Hitchcock error based on a similar rationale. In that case, the judge told the jury, “The mitigating circumstances which you may consider if established by the evidence among others are these,” and then listed the statutory mitigating factors. Sims, 155 F.3d at 1315 (quotation marks omitted). Focusing on the use of the phrase “among others,” we found that this “instruction did not preclude the jury from considering all the mitigating evidence presented by defense counsel but, instead, instructed them to consider all the evidence that was presented.” Id. Unlike here, though, Sims involved a single instruction rather than two separate, and potentially conflicting, instructions.

Nevertheless there are good reasons for declining to adopt that reading. The court's initial instruction, on its own, clearly would have limited the jury's consideration to statutory factors and thus violated Hitchcock. See Jones v. Dugger, 867 F.2d 1277, 1279 (11th Cir.1989) (finding Hitchcock error with respect to a virtually identical instruction). Additionally, though the court made a later, non-limiting statement, this “proper instruction was not linked to the erroneous one in such a way as to explicate it or to make clear that the proper instruction was preeminent and controlling.” Hall, 892 F.2d at 1545. Furthermore, the prosecutor's statements strongly suggested that the jury's consideration was limited to the statutory factors and therefore “exacerbated the impact of the court's erroneous instruction.” Jones, 867 F.2d at 1279 n. 4. Bearing all of this in mind, we assume that there was a Hitchcock error here and thus turn to the issue of whether that error was harmless.
Ferguson contends that the Hitchcock error was not harmless due to the strength of the mitigating evidence the jury did not consider as a result of the error. In particular, he cites the evidence produced at trial that indicated that the murders were not premeditated, that at least five of the six murders were performed by one of his co-defendants, Marvin Francois, and that he tried to comfort some of the victims. Ferguson contends that the jury reasonably could have concluded from this evidence that he was an unwilling accomplice to Francois's actions and that he tried to stop the murders. Ferguson also mentions that the jury witnessed his strange behavior at trial, including stripping off his clothes in the courtroom, and that there was evidence at trial regarding his mental problems and prior hospitalization. Additionally, Ferguson asserts that we should consider the cumulative evidentiary effect of the various trial errors, i.e., the mitigating evidence that Robbins failed to produce due to his ineffective assistance as well as the non-statutory mitigating evidence actually produced.

As a preliminary note, we cannot consider as part of our harmless error analysis any mitigating evidence that Robbins failed to produce. In performing the harmless error analysis for a Hitchcock claim, we “must consider both the mitigating evidence presented at sentencing as well as mitigating evidence that could have been presented, but which the state trial court prevented the petitioner from presenting.” Smith, 61 F.3d at 817 (quotation marks and citation omitted). “In other words, [we] must consider all potential mitigating evidence that would have been presented, but for the Hitchcock error.” Id. In this case, there is no indication that the trial court inhibited Ferguson's ability to present the missing mitigating evidence, and Ferguson identifies no case law supporting the notion that a harmless error analysis for a Hitchcock claim should examine such evidence. FN23
FN23. Although Ferguson cites three cases from our sister circuits in support of his proposition, they all involve separate claims alleging cumulative error from the effect of multiple harmless errors rather than as part of the analysis of a single harmless error issue. See Miller v. Mullin, 354 F.3d 1288, 1301 (10th Cir.2004) (per curiam); Alcala v. Woodford, 334 F.3d 862, 893-94 (9th Cir.2003); Anderson v. Sternes, 243 F.3d 1049, 1055 (7th Cir.2001).

We thus must determine whether the non-statutory evidence Ferguson actually presented at trial, which he asserts the jury did not consider, would have substantially influenced the outcome if the jury had taken it into account. In fact, the jury may have considered some of this evidence. One of the statutory mitigating circumstances included in the jury instructions was that Ferguson was an accomplice to the offense and played a relatively minor role in its commission. The jury could have viewed evidence regarding Ferguson's alleged lack of responsibility for the murders in the crime as falling under this category.FN24 If this were the case, the only evidence that would have been unconsidered was that respecting the lack of premeditation, which would not be enough to alter the outcome in the face of the aggravating circumstances.
FN24. A similar argument could be made with respect to the mental illness evidence and the judge's instructions regarding lack of ability to appreciate the effect of one's actions and the commission of the offense while under mental duress. However, the jury's ability to consider that evidence would be limited by the high standards required to meet either of those factors, i.e., extreme mental or emotional disturbance and substantial impairment. See Booker v. Dugger, 922 F.2d 633, 636 (11th Cir.1991) (commenting on the difficulty in meeting these standards).

Even if we assume that the jury did not take into account any of the evidence Ferguson categorizes as non-statutory, there is good reason to believe that the evidence, had it been considered, would not have altered the outcome of the trial. Notably, we can find only one case, Smith, in which we found that a Hitchcock error was not harmless under the Brecht standard. FN25 See Smith, 61 F.3d at 819. The non-statutory evidence in Smith presents a much stronger case for non-harmlessness than does that in Ferguson's. In Smith, there were at least fourteen different pieces of mitigating evidence that the jury did not consider because of the Hitchcock error. See id. at 817-18. The non-statutory mitigating evidence presented at the Carol City trial also was put forth in Smith, i.e., that the defendant did not perform the actual murders, that he was influenced by the dominant personality of an accomplice, and that he had mental difficulties-in Smith, stemming from alcohol and substance abuse. See id. However, in Smith there were a number of other mitigating factors that were not present in Ferguson's case. For instance, Smith was a minor at the time of the crime, was intoxicated and under the influence of marijuana when the murders occurred, had a non-violent personality, and suffered from epilepsy. See id. Additionally, one of Smith's accomplices, who had been found guilty of the same number of felonies as Smith, was given a life sentence rather than the death penalty. See id. at 817.
FN25. Ferguson cites various cases in which we found Hitchcock errors were not harmless; however, all of those cases were decided under more lenient harmless error standards, i.e., whether “the evidence excluded from the jury's sentencing deliberations by a limiting instruction could have had any effect on the jury's recommendation.” Booker, 922 F.2d at 635; see also Delap v. Dugger, 890 F.2d 285, 306 (11th Cir.1989) (finding Hitchcock error “not harmless beyond a reasonable doubt”).

Bearing in mind this precedent, we do not believe that there is a reasonable probability that the non-statutory evidence, had it been considered by the jury, would have altered Ferguson's sentence. Although Smith involved a similar array of aggravating factors, the mitigating circumstances in that case presented a much stronger argument against a death sentence than the mitigating evidence here.FN26 Additionally, as previously noted, the aggravating factors here are quite numerous and compelling. Particularly since the jury may have considered much of this mitigating evidence as part of various statutory factors, we do not believe that there was “more than a reasonable possibility that the [ Hitchcock] error contributed to [Ferguson's] sentence.” Horsley, 45 F.3d at 1493. Since the error thus did not have a “substantial and injurious effect or influence in determining the jury's verdict,” we conclude that it was harmless and that the district court correctly denied Ferguson habeas relief for this claim. Sims, 155 F.3d at 1315 (quotation marks and citations omitted).
FN26. Smith involved six aggravating factors: (1) that the defendant had two prior felony convictions; (2) “that he committed the murder ‘in the course of a kidnapping,’ ” (3) “to avoid arrest,” and (4) “for pecuniary gain;” “(5) that the murder was heinous, atrocious, and cruel; and (6) that the murder was cold, calculated, and premeditated.” Smith, 61 F.3d at 816.

2. The Hialeah Trial

At the Hialeah trial, the judge's first two instructions relating to mitigating circumstances were essentially the same as those in the Carol City trial. Unlike in the Carol City proceedings, though, he made no subsequent statement informing the jurors that they were not limited in the mitigating factors they could consider. The parties concede that these instructions constituted a Hitchcock error. We therefore must decide whether this error was harmless under the Brecht standard.
The Florida Supreme Court rejected Ferguson's Hitchcock claim during the 3.850 proceedings.FN27 It found that there had been a Hitchcock error in the Hialeah trial but concluded that the error was harmless “beyond a reasonable doubt.” Ferguson IV, 593 So.2d at 513. The court described the additional mitigating evidence presented at the 3.850 hearing, which dealt Ferguson's family history, as “relatively insignificant.” Id. at 512. It then went on to note that the mitigating evidence was “especially insignificant in light of the heinous nature of the killings in this case and the overwhelming aggravating factors.”FN28 Id.

FN27. The circuit court in those proceedings found that the Hitchcock error was harmless beyond a reasonable doubt since the trial court had told the jury to consider all of the evidence. The trial judge instructed the jury to “carefully weigh, sift and consider the evidence, and all of it, realizing that human life is at stake.” App. LL, Vol. 6 at 1463-64.
FN28. It is unclear whether, in making this statement, the court was describing solely the mitigating evidence from the 3.850 hearing or all of the mitigating evidence in the case.
The district court agreed that the Hitchcock error “was harmless beyond a reasonable doubt.” R4-108 at 37. In support of this conclusion, the court cited both the egregiousness of the aggravating circumstances and the fact that the jury already had discounted the non-statutory mental health evidence when it considered and rejected Ferguson's insanity defense. The court also agreed with the Florida Supreme Court that the outcome would have been the same even if the non-statutory mitigating evidence produced at the 3.850 hearing had been taken into account.

Ferguson notes that there was a wealth of evidence produced at trial regarding his psychological problems and that he exhibited bizarre behavior during the course of the trial. He asserts that the jury did not consider this evidence in imposing sentence because his counsel presented it only in terms of an insanity defense and did not connect it to a statutory mitigating factor. As previously noted, there is a reasonable argument that the jury did not take the mental health evidence into account because of the language of the jury instructions regarding mental duress and inability to appreciate the impact of one's actions. See n.24 supra. However, the judge's instruction to consider and weigh all of the evidence may mitigate the fact that counsel did not connect the evidence to a statutory mitigating factor.

Even if we accept Ferguson's contention that the jury did not consider the evidence, we do not believe that the Hitchcock error would have changed the outcome. The evidence Ferguson cites here is essentially the same as that which he referenced with respect to the prejudice prong of his ineffective assistance claim. In fact, it may even be less since Ferguson has not identified a basis for us to take into account evidence that was not produced at trial. See Smith, 61 F.3d at 817. Since that evidence was insufficient to meet Strickland's requirement that there be a “reasonable probability” of affecting the outcome, it likewise would not be enough to show the “substantial and injurious effect or influence” on the verdict required under Brecht. Sims, 155 F.3d at 1315 (quotation marks and citations omitted). Furthermore, as in the Carol City case, it is highly improbable that enough jurors would find that the multiple egregious aggravating factors were outweighed by this unconsidered mitigation evidence. We therefore conclude that the Hitchcock error in the Hialeah trial was harmless and that the district court properly denied Ferguson habeas relief with respect to this claim.

D. Brady Claim

Ferguson contends that the prosecution in both trials violated his due process rights, as described in Brady, by failing to disclose evidence that three of its witnesses, detectives Robert Derringer, Charles Zatrepalek, and Michael MacDonald (“the detectives”), were under investigation for drug trafficking, conspiracy, theft, and civil rights violations. FN29 Ferguson asserts that all of the requirements to establish a Brady claim are present here and that the district court erred in failing to grant him habeas relief or, in the alternative, to hold an evidentiary hearing on the issue.FN30 He contends that the State possessed evidence of the detectives' ongoing criminal conduct at the time of the trials because it had constructive, if not actual, knowledge of their illegal activities and the knowledge of the detectives could be imputed to the prosecution. He also maintains that this evidence was material because there were similarities between the charges against Ferguson and the activities in which the detectives were involved, i.e., stealing money from drug dealers and threatening to kill people. According to Ferguson, the prosecution's failure to provide this evidence undermines confidence in the verdicts because of the critical role the detectives played at trial.

FN29. This conduct ultimately led to a 40-count indictment and multiple convictions for various individuals, including Derringer. See United States v. Alonso, 740 F.2d 862, 865 (11th Cir.1984). FN30. Although the 3.850 evidentiary hearing ostensibly addressed the Brady issue among others, Ferguson contended that he could not offer a “full Brady presentation” at that time because his motion for discovery on that topic had been denied and the prosecution files to which he had access did not contain the necessary information about the arrests. App. NN at 2883.

The state courts rejected Ferguson's Brady claim argument during the 3.850 proceedings. The circuit court made three principal findings: (1) that evidence concerning the detectives' involvement in the illegal activities was not material under the standard articulated in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); (2) that the State did not possess the evidence because it had no actual knowledge of the illegal activities and such knowledge could not be imputed to it; and (3) that it was not reasonably probable that the evidence, if admissible, would have changed the outcome of the proceedings. The Florida Supreme Court found the Brady claim to be without merit and dismissed it summarily.
The district court determined that Ferguson had failed to state a Brady claim. The court found that each of the circuit court's three findings could serve as an independent basis for denying Ferguson's claim. The court agreed that the evidence would have been inadmissible under Florida law and thus was not material for the purposes of assessing the claim. It found that the State did not have possession of the impeachment evidence for the purposes of a Brady violation since it had no actual knowledge of the evidence and the prosecution's duty to inquire into such evidence would have been trumped by the detectives' Fifth Amendment rights The court also found that the results of the proceedings would not have changed if the impeachment evidence had been presented.

For a petitioner to prevail on a Brady claim, he “must establish (1) the government possessed evidence favorable to him; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the government suppressed the favorable evidence; and (4) the evidence was material.” Lamarca v. Secretary, Dep't of Corr., 568 F.3d 929, 941 (11th Cir.2009) (quotation marks and citation omitted). Evidence would be “material” if it is reasonably probable that a different outcome would have resulted if the government had disclosed the evidence. See id. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. (quotation marks and citation omitted). Because we find that the evidence was not material for the purposes of Brady, we need not address the other prongs.
The Florida Supreme Court has held that, as a general matter, if a state witness “were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges,” a defendant has the right to bring out the circumstances behind those charges on cross-examination. Reed v. State, 875 So.2d 415, 431 (Fla.2004) (per curiam) (quotation marks and citation omitted). However, when that “state witness is merely under investigation,” the defendant would not have this right when the investigation is either too remote in time from or not related or relevant to the case at issue. Id. In Breedlove I, we noted that “evidence of unrelated illegal activity by a police officer testifying for the state would likely not have been admissible under Florida's law of evidence, and thus immaterial for Brady purposes.” Breedlove I, 279 F.3d at 964 (citing Delap, 890 F.2d at 298).

Since the detectives had not been charged at the time of Ferguson's trials, evidence of their illegal activities would have been admissible only if the investigations were related to the cases against Ferguson and were not too remote in time from his trials.FN31 We thus must determine whether Ferguson has shown that there was sufficient relation between those investigations and his own case. According to Ferguson, such a connection existed because the detectives were charged with crimes that bore a resemblance to his own. In particular, he cites the fact that the detectives' crimes involved ripping off drug dealersFN32 in the same location and during the same time frame as the Carol City crimes, and that these crimes involved stealing money from a private home and threats to kill people, if not actual killings. See Breedlove I, 279 F.3d at 956. He asserts that these similarities make it distinctly plausible that the detectives had a motivation to resolve Ferguson's case quickly and possibly to throw suspicion on him for their own crimes.
FN31. Though neither party raises it as an issue, it should be noted that there is no retroactivity problem in applying these Florida precedents since there was case law at the time of the trials supporting essentially this standard. See Fulton v. State, 335 So.2d 280, 283-84 (Fla.1976).
FN32. This was a stated purpose of the home invasion that precipitated the Carol City murders.

We addressed essentially the same argument in Breedlove I, which involved a Brady claim based on the alleged suppression of evidence regarding illegal activities by many of the same detectives who testified at Ferguson's trials. See Breedlove I, 279 F.3d at 959-64. In that case, we found it was not objectively unreasonable for the Florida Supreme Court to determine that evidence of the detectives' crimes was unrelated, and thus not material, to the case against the petitioner, who had been convicted of felony murder connected with a burglary of a house in Miami. See id. at 954-55, 963. Because Breedlove I involved a post-AEDPA inquiry into objective unreasonableness, rather than the de novo review applicable here, our holding in that case would not be binding here. See id. at 963.
Even though Breedlove I is not controlling, Ferguson has failed to provide a rationale for us to reach a different conclusion with respect to materiality. The purported connections between Ferguson's offenses and the detectives' crimes are too attenuated to meet the materiality test. The criminal scheme in which the detectives took part included a range of drug-related felonies not seen in the Carol City murders, i.e., racketeering, possession of various drugs with the intent to distribute, money counterfeiting, and tax evasion. See Alonso, 740 F.2d at 865 n. 1. Additionally, the conspirators used a falsified police warrant to gain entry to the home, a modus operandi distinct from and likely unavailable to Ferguson and his compatriots during the Carol City murders. See id. at 866. The detectives also may not have been aware of the investigations at the time of Ferguson's trials and thus would not have had a reason to implicate Ferguson for their crimes. See Breedlove v. State, 580 So.2d 605, 607 (Fla.1991) ( Breedlove II) (per curiam). If, as Ferguson asserts, the detectives were motivated by a desire to implicate others for their crimes, he has not identified “particular facts” to indicate why the detectives would have had a reason to present false testimony in his specific case. Reed, 875 So.2d at 431. Since Florida courts would have treated such evidence as inadmissible, it is immaterial for Brady purposes. We therefore find that Ferguson has not stated a valid Brady claim and that the district court thus properly denied Ferguson habeas relief for this claim.FN33
FN33. We also note our agreement with the district court's finding that the evidence did not affect the proceedings because there was ample independent evidence to support his conviction in both cases.

E. Failure to Correct False Testimony

Ferguson also asserts that his due process rights were violated by the prosecution's eliciting and failing to correct false testimony from Edward Hartmann, a police officer at the Carol City trial. Hartmann testified that Ferguson was convicted of assault with intent to commit murder based on a 1969 shooting incident with Hartmann. In fact, Hartmann shot Ferguson four times, and Ferguson was acquitted of the assault charges, though he was found guilty of robbery in connection with the same incident. Ferguson contends that the prosecutor was aware of this discrepancy and violated his due process rights by failing to correct it. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). He also maintains that his trial and post-conviction counsel were unaware of the error and that his own incompetence prevented him from informing them of it.

Ferguson first made this claim in a supplement to his 3.850 motion, which he filed after the circuit court already had denied his motion in full. The circuit court denied his motion to supplement, finding that the motion was untimely because it was “predicated on facts which could have been raised at an earlier time.” App. NN at 1399. The Florida Supreme Court summarily denied Ferguson's appeal on this issue.
The district court found this claim to be procedurally barred under Vining v. State, 827 So.2d 201, 212 (Fla.2002) (per curiam), in which the Florida Supreme Court held that such claims cannot be raised for the first time in a 3.850 motion unless they involved an error that was unknown to the defendant and his counsel at the time of trial and could not be uncovered through due diligence. The district court determined that Robbins was aware of the facts of the shooting incident at the time but did not object to the testimony and that Ferguson's alleged incompetence could not provide a basis for relief since the circuit court found him competent to stand trial. The court also noted that, even assuming the claim was not procedurally barred, the false testimony amounted to harmless error.

To make out a valid Giglio claim, a petitioner “must establish that (1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material-i.e., that there is any reasonable likelihood that the false testimony could have affected the judgment.” Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir.2006) (per curiam) (quotation marks, alterations, and citation omitted). Under the then-applicable version of Rule 3.850, a defendant had to file a motion within two years of the date his conviction became final. FN34 See Fla. R.Crim. P. 3.850(b) (1990). However, there was an explicit exception to this time bar if the defendant alleged that the facts upon which he based his claim were unknown to him or his attorney “and could not have been ascertained by the exercise of due diligence.” Id. 3.850(b)(1). Furthermore, under that rule, a circuit court was not obligated to consider supplemental pleadings to a 3.850 motion if it had already ruled on the merits of that motion. See id. 3.850(f); State v. Green, 944 So.2d 208, 218 (Fla.2006). The failure to file within the time frame discussed in Rule 3.850 would procedurally bar a petitioner from bringing a federal habeas claim on that issue. See Whiddon v. Dugger, 894 F.2d 1266, 1267-68 (11th Cir.1990). FN34. The current version of Rule 3.850 sets the time limits at two years for non-capital cases and one year for capital cases. See Fla. R.Crim. P. 3.850(b) (2009); In re Rule of Crim. Procedure 3.851, 626 So.2d 198, 199-200 (Fla.1993) (per curiam) (discussing changes to Rule 3.850).

As a preliminary matter, there may have been no Giglio violation here because the prosecutor arguably corrected the false testimony by entering into evidence Ferguson's correct conviction record, which included a reference to the not guilty verdict; however, no party called attention to the discrepancy. In any event, assuming there was a violation, Ferguson's claim would be procedurally barred. The motion to supplement was filed twelve years after the completion of trial and a month after the court denied Ferguson's 3.850 motion. Ferguson's counsel contends that neither they nor any of his prior counsel had knowledge of the incorrectness of Hartmann's testimony until July 1990 when they discovered documents indicating a contrary set of events. Even if we accept these facts, and there are reasons to doubt them,FN35 Ferguson has not explained why his attorneys could not have obtained evidence of the discrepancy at an earlier date. In light of the extreme time gap between trial and the filing of the motion to supplement, along with the fact that evidence of the factual discrepancy was in the trial record, we find that Ferguson has not shown that he meets the due diligence requirement for the exception to Rule 3.850's time bar. We therefore conclude that Ferguson's Giglio claim is procedurally barred.FN36

FN35. Robbins's cross-examination of Hartmann included multiple questions regarding in which parts of the body Ferguson had been shot, which indicates that he may have been aware of the basic circumstances of the incident prior to the conviction record being entered as evidence. Robbins also could have received knowledge of the events from Ferguson, who had been deemed competent to stand trial and can be assumed to have known his own criminal history, particularly after having his memory refreshed by Hartmann's testimony.
FN36. We note that, even assuming that the claim was not procedurally barred, it would constitute harmless error, since the error would affect only one of the aggravating factors, Ferguson's past violent felony convictions, and there would still be two violent felony convictions to trigger that factor.

F. Jury Separation Claim

Ferguson contends that he was denied the effective assistance of appellate counsel because his counsel failed to raise on appeal the issue of the separation of the Hialeah jury during its deliberations. He first raised this argument during the state habeas proceedings, and it was rejected by the Florida Supreme Court. The court noted that such a claim would not be cognizable unless there had been a contemporaneous objection by trial counsel, assuming the judge gave the jury adequate cautionary instructions. It found that Ferguson's trial counsel failed to make such an objection and that the trial judge had instructed the jury not to discuss the case. In combination with the judge's other cautionary instructions during the trial, these facts rendered Ferguson's claim meritless. The district court agreed with the Florida Supreme Court's rationale and concluded that the failure to raise the argument would not constitute ineffective assistance of counsel.
Since Ferguson's state appellate counsel could be ineffective for not raising the jury separation claim only if that issue had been preserved for appeal, we must determine whether the issue was waived. See Rose v. Dugger, 508 So.2d 321, 323 (Fla.1987) (finding appellate counsel not deficient when jury separation issue was not preserved for appellate review). Under Florida law, “in a capital case, after the jury's deliberations have begun, the jury must be sequestered until it reaches a verdict or is discharged after being ultimately unable to do so.” Livingston v. State, 458 So.2d 235, 239 (Fla.1984); see also Fla. R.Crim. P. 3.370(c). It is per se reversible error to permit a jury to separate over an objection by defense counsel. See Pope v. State, 569 So.2d 1241, 1243 (Fla.1990) (per curiam). Because “this per se rule is merely prophylactic in nature,” counsel must make a contemporaneous objection at trial to the separation when the court gives cautionary instructions to the jury. Id. at 1244. As a result, if defense counsel either makes no contemporaneous objection to separation or affirmatively consents to it, the error is deemed waived if “adequate cautionary instructions were given and there is no other showing that the defendant's right to a fair trial was compromised.” Id. In this case, it is undisputed that defense counsel made no contemporaneous objection to the jury separation, and Ferguson does not argue that his right to a fair trial was compromised. Accordingly, the error would be waived if we find that the judge gave adequate cautionary instructions to the jury.

Throughout the course of the Hialeah trial, the judge gave the jury repeated cautionary instructions about not discussing the case with anyone and not consulting outside sources.FN37 Immediately prior to the jury's beginning their deliberations, the judge instructed them as follows: “You may now retire to the jury room. My earlier discussions with you about not talking about this case you can forget about and you can talk about it all you want.” App. LL, Vol. 6 at 1419. The jury deliberated for a few hours and then made a request to go home for the evening, which the trial judge granted. Before they left, he gave them the following instructions:
FN37. He typically gave the jury such instructions before the court recessed for lunch or for the day, though there were occasions in which he did not give those instructions before a break.

There are some special admonitions that, of course, I think are appropriate.
The case ought to stay here. Forget about it. Relax for the evening ....
[In the morning] I would like everybody in here ready to go by nine and I would like you to report here rather than upstairs ....
Come directly into the courtroom .... Go directly into the jury room and do not discuss the case until I am with you and tell you to do so. Id. at 1425-26.

We find the judge's cautionary instructions to be adequate, especially in light of his earlier repeated admonitions. There is scant Florida case law discussing what would constitute an adequate cautionary instruction. The most analogous case is Engle v. State, 438 So.2d 803 (Fla.1983) (per curiam), which involved the failure to instruct the jury, immediately before it separated for deliberations, that it was not to visit the scene of the crime. The judge in that case gave the jury such an instruction only at the beginning of the trial, which was three days before the jury separation. See id. at 809. The Florida Supreme Court found there to have been no reversible error due to the separation since the jury would have been “capable of remembering and heeding the judge's admonition not to visit the scene of the alleged crime without the necessity of repeating the same every time that the jury separates.” Id.
The logic in Engle applies equally here. The Hialeah trial judge repeatedly advised the jurors not to discuss the case when they left the courtroom, and we find it reasonable to infer that the jury kept these warnings in mind at the end of the trial. Ferguson argues that these admonitions were undermined by the instruction immediately prior to the commencement of deliberations for the jury to “forget about” the earlier warnings. However, any such subversion would have been cured by the judge's instruction immediately prior to separation that the jurors should not discuss the case until he was with them and told them they could do so. Since the instructions likely were adequate and Ferguson's counsel did not object to the separation, we find that this issue was waived. As a result, Ferguson's appellate counsel would not be ineffective for failing to raise the issue on appeal. We therefore conclude that the district court correctly denied Ferguson habeas relief with respect to this claim.

G. Resentencing by a New Judge

Ferguson also asserts that his federal due process rights were violated because he was resentenced to death by a new judge without the benefit of an evidentiary hearing. As previously noted, the trial judge who presided over both the Carol City and Hialeah trials retired during the pendency of Ferguson's appeal. After the Florida Supreme Court vacated and remanded Ferguson's death sentences, a successor judge resentenced him to death. On direct appeal from the resentencing, the Florida Supreme Court affirmed these sentences after determining that the successor judge had not abused his discretion in denying Ferguson's request for an evidentiary hearing before resentencing. The court noted that the successor judge had found Ferguson's offer of proof insufficient to merit reopening the case to hold such a hearing.
In the state habeas proceedings, Ferguson asserted that his resentencing violated the requirement, set forth in Corbett v. State, 602 So.2d 1240 (Fla.1992) (per curiam), that a substitute judge who did not hear the evidence presented as part of the penalty phase of a trial “must conduct a new sentencing proceeding before a jury to assure that both the judge and jury hear the same evidence that will be determinative of whether a defendant lives or dies.” Corbett, 602 So.2d at 1244. The Florida Supreme Court concluded that, although the holding in Corbett applied to resentencings, it did not apply retroactively since it was not a fundamental constitutional change in the law. The court also found that Ferguson had not preserved the issue and that, as a result, his claim was procedurally barred. This procedural bar applied because, although Ferguson had requested an evidentiary hearing at the resentencing, he had not raised the issue of whether the judge could properly evaluate the record without such a hearing.

In the federal habeas proceedings, Ferguson argued that resentencing him without an evidentiary hearing violated notions of due process and fundamental fairness.FN38 He asserted that Corbett and successor cases applied to his case because they reflected fundamental federal and state constitutional principles, the Florida Supreme Court's findings on the issue notwithstanding. Additionally, he maintained that his claim was not procedurally barred because Florida law has no contemporaneous objection requirement and any objection would have been futile in light of the Florida Supreme Court's instructions for the remand. The district court rejected these arguments. It found that Ferguson's Corbett claims did not state a basis for granting habeas relief and that they solely implicated violations of state law for which federal habeas relief would be unavailable.
FN38. Ferguson made an additional argument that the resentencing was contrary to Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002), in which the Supreme Court held that a jury, rather than a judge, must make all findings of fact necessary for eligibility for the death penalty. The district court rejected this argument, noting that we have construed Ring not to have retroactive application. See Sibley v. Culliver, 377 F.3d 1196, 1208 (11th Cir.2004). Ferguson abandoned this argument on appeal.

As a preliminary note, it is doubtful that there is a federal constitutional principle requiring the sentencing judge to have heard the evidence before imposing sentence. We have never addressed this specific question, nor has any other federal court, as best as we can tell, and the cases Ferguson cites all address different concerns. See, e.g., United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir.2001) (per curiam) (articulating general rule that a district court must rehear witness testimony before rejecting magistrate judge's credibility findings but need not do so if it is accepting the findings). In fact, the only instances in which a court has imposed a similar requirement are Corbett and its progeny, which are premised on state law.FN39 Additionally, the principle suggested by Ferguson may be at odds with a past cases in which we found that a substitute judge who read the trial record and transcripts was sufficiently familiar with a case to sentence a defendant. See United States v. Dowd, 451 F.3d 1244, 1256 (11th Cir.2006); see also United States v. Casas, 425 F.3d 23, 56 (1st Cir.2005) (noting that “a replacement judge is ordinarily capable of assessing the credibility of the witnesses and the evidence at trial by a thorough review of the record”) (quotation marks and citation omitted). Given that “[a] sentencing judge enjoys broad discretion to determine whether he can perform sentencing duties in a case he did not try,” there does not seem to be a federal constitutional principle at issue here. United States v. McGuinness, 769 F.2d 695, 696 (11th Cir.1985) (per curiam). As a result, Ferguson's claim likely involves solely state law issues that could not serve as the basis for a federal habeas claim. See Hendrix v. Secretary, Fla. Dep't of Corr., 527 F.3d 1149, 1153 (11th Cir.2008) (per curiam) (noting that “a violation of state law is not a ground for federal habeas relief”).
FN39. Ferguson cites portions of the petitioner's brief in Corbett referencing federal constitutional bases for the asserted right; however, the Florida Supreme Court premised its decision entirely on state statutory and case law. See generally Corbett, 602 So.2d 1240.

However, assuming arguendo that Ferguson's claim involves a federal constitutional principle, it still may be subject to a procedural bar. “A state court's rejection of a petitioner's constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim.” Payne v. Allen, 539 F.3d 1297, 1312-13 (11th Cir.2008) (quotation marks and citation omitted). For such a bar to apply, the state court's decision must rest on “an independent and adequate state ground.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001) (quotation marks and citation omitted). We apply a three-part test to determine whether a state procedural rule is adequate and independent. See id. First, the last state court to render judgment on the issue “must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim.” Id. Second, “the state court's decision must rest solidly on state law grounds, and may not be intertwined with an interpretation of federal law.” Id. (quotation marks and citation omitted). Third, the procedural rule has to be “adequate,” meaning that it is not “applied in an arbitrary or unprecedented fashion.” Id.

The Florida Supreme Court found Ferguson's due process claim to be procedurally barred because he failed to raise an objection on these grounds in the district court and thus had not preserved the issue for appellate review. FN40 Florida law requires a defendant to make a “contemporaneous, specific objection ... at the time of the alleged error” to preserve an issue for appellate review. Overton v. State, 976 So.2d 536, 547 (Fla.2007) (per curiam). In this case, the Florida Supreme Court clearly and expressly invoked that state law principle in deeming the claim procedurally barred, and there is no indication that it relied on anything besides state law in applying the procedural bar.FN41 Additionally, though the court discussed the merits of Ferguson's Corbett claim, we can still apply the state procedural bar since it couched its discussion of the procedural bar in the alternative. See Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.1994). Since the first two prongs of the adequate and independent state grounds test were met, the only remaining question is whether the Florida Supreme Court applied the contemporaneous objection rule in “an arbitrary and unprecedented fashion.” Judd, 250 F.3d at 1313.

FN40. The court noted that, although Ferguson's counsel requested an evidentiary hearing at resentencing, “he failed to raise the grounds now raised-that Judge Klein could not properly evaluate the aggravation and mitigation on the basis of a cold record.” Ferguson V, 632 So.2d at 56. This claim had been “raised on direct appeal from resentencing, but since it was not raised below it was procedurally barred at that time.” Id. Because Ferguson's state habeas petition referenced principles of both state and federal due process, this procedural bar would apply to his federal due process claim.
FN41. Although the Florida Supreme Court, in discussing the procedural bar, did not cite any statutory or case law to this effect, its statements reflect this general principle.

Under the contemporaneous objection rule, an issue is properly preserved if the trial court knows that an objection was made, clearly understands the nature of the objection, and denies that request. See Thomas v. State, 419 So.2d 634, 636 (Fla.1982). Though “magic words are not needed to make a proper objection,” counsel must articulate his concern with sufficient specificity “to inform the trial judge of the alleged error.” Williams v. State, 414 So.2d 509, 512 (Fla.1982). In sum, “an objection must be specific enough to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Id. at 511 (quotation marks and citation omitted).
Ferguson maintains that he met the contemporaneous objection requirement because his counsel requested an evidentiary hearing before the successor judge, which was sufficient to put the judge on notice of his due process objection to the resentencing. He notes that the Florida Supreme Court does not require counsel “to pursue a completely useless course when the judge has announced in advance that it will be fruitless.” Thomas, 419 So.2d at 635 (quotation marks and citation omitted). He asserts that the Florida Supreme Court's instruction that “[a]n additional sentence advisory verdict by a jury” would not be required on remand constitutes just such an announcement. Ferguson I, 417 So.2d at 646. As a result, any objection his counsel could have made beyond requesting an evidentiary hearing would have been pointless.

There is little basis in the record from which the trial court could have concluded that Ferguson's counsel was making a due process objection to being resentenced by a successor judge without a hearing. Rather, all of the objections raised addressed the failure to hold an evidentiary hearing to permit the introduction of further mitigating evidence. Additionally, Ferguson's counsel failed to object when, before resentencing Ferguson, the court specifically asked whether there was any legal reason why it should not resentence him. Even though Florida law provides some leeway with respect to the form and substance of the objection, a request for an evidentiary hearing is insufficiently specific to apprise the trial court that a due process objection was being made. See Williams, 414 So.2d at 511-12. In light of this failure, Ferguson has not triggered the futility exception, even taking into account the Florida Supreme Court's statement about the limited scope of remand and the fact that Ferguson's appellate counsel raised the issue on appeal from the resentencing.

Ferguson cites various cases in which the Florida Supreme Court has indicated that the failure to object does not automatically preclude review; however, upon closer examination, they do not evince an arbitrary or irregular application of the contemporaneous objection rule. Most of his references are to cases in which the Florida Supreme Court addressed alleged Hitchcock violations even though the defense counsel did not make that objection at trial. See, e.g., Mikenas v. Dugger, 519 So.2d 601, 602 (Fla.1988) (per curiam); Thompson v. Dugger, 515 So.2d 173, 175 (Fla.1987) (per curiam). In those instances, the court found it appropriate to consider the issue because “ Hitchcock represented a sufficient change in the law to defeat the application of procedural default.” Mikenas, 519 So.2d at 602; see also Thompson, 515 So.2d at 175. Additionally, in Smalley v. State, 546 So.2d 720 (Fla.1989) (per curiam), abrogation on other grounds recognized by Beltran-Lopez v. State, 626 So.2d 163, 164 (Fla.1993) (per curiam), the defense counsel failed to object to a “heinous, atrocious, or cruel” jury instruction, but the court decided to hear the merits of the argument because a recent Supreme Court case had raised the issue of whether such an instruction was unconstitutionally vague under the Eighth and Fourteenth Amendments. See Smalley, 546 So.2d at 722.

The only case that may support Ferguson's argument is Elledge v. State, 346 So.2d 998, 1002 (Fla.1977), in which the court noted that counsel's failure to object to testimony “should not be conclusive of the special scope of review by this Court in death cases.” There appear to be no other state cases citing that principle, although we cited it in two decisions, and it may not be applicable outside of the context of admissibility of testimony. See Mann v. Dugger, 817 F.2d 1471, 1475 (11th Cir.1987), reh'g granted and opinion vacated on other grounds by Mann v. Dugger, 828 F.2d 1498 (11th Cir.1987) (per curiam); Henry v. Wainwright, 686 F.2d 311, 314 (5th Cir. Unit B 1982), vacated on other grounds by Wainwright v. Henry, 463 U.S. 1223, 103 S.Ct. 3566, 77 L.Ed.2d 1407 (1983) (mem.). In any event, one instance of not applying the contemporaneous objection rule does not indicate that the Florida Supreme Court has not adhered strictly to the rule. As a result, there is no indication that the procedural bar was not an adequate state ground.
Because the contemporaneous objection rule is an adequate and independent state ground, we are barred from reviewing Ferguson's successor judge claim unless he can show cause and prejudice to excuse the procedural bar or that “a fundamental miscarriage of justice” would result. Zeigler, 345 F.3d at 1304 (quotation marks and citation omitted). Ferguson asserts that he has shown cause because it would have been fruitless to raise such an objection in light of the Florida Supreme Court's instructions on remand. However, “the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial.” Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). Since Ferguson has cited no other rationale for his failure to object, we find that he has not shown cause for the procedural default. Furthermore, although Ferguson does not argue that applying the bar would constitute a “fundamental miscarriage of justice,” we note that his situation would not fall under that description, which is reserved for “extraordinary” circumstances, such as “where a constitutional violation has resulted in the conviction of someone who is actually innocent.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.2003). We therefore are procedurally barred from hearing Ferguson's due process claim. As a result, we conclude that the district court correctly denied Ferguson's habeas petition with respect to this claim.

H. Race-Based Peremptory Challenges

Ferguson contends that the prosecutor at both of his trials made race-based peremptory challenges. He asserts that these challenges were unconstitutional under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and urges us to find that Batson applies retroactively in capital cases. He also maintains that his Batson claim would not be procedurally defaulted because his counsel at both trials were ineffective in not objecting to the race-based strikes. In the alternative, he argues that he is entitled to an evidentiary hearing to present evidence that would show the existence of systematic exclusion practices in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
Ferguson first raised the issue of racially-based peremptory challenges during the 3.850 proceedings, arguing that the State violated his right to a fair and impartial jury and equal protection rights by exercising such challenges, that his counsel was ineffective for failing to object to those challenges, and that Batson should apply to his claim. The circuit court denied this claim in two separate orders. It first struck the portion of the claim alleging a Batson violation because it found that violations of Batson, and a corresponding state case, State v. Neil, 457 So.2d 481 (Fla.1984), were not fundamental error nor applied retroactively and therefore could not be raised for the first time in a motion for post-conviction relief. In a later order, the court found that Ferguson failed to show either that the jury was all white or that, even if it was, the State used its peremptory challenges to excuse black jurors solely because of their race. The court also determined that, even if the State had such race-based motives, Ferguson had not shown that his counsel was deficient or ineffective in failing to object nor that he had been prejudiced by such a failure. The Florida Supreme Court summarily denied this claim, finding it to be without merit.

The district court rejected all of Ferguson's arguments with respect to the alleged race-based peremptory challenges. It found that Ferguson's Batson claim failed because Ferguson could not show that blacks had been systematically excluded from his jury.FN42 It also determined that, assuming that such challenges had occurred, there was no evidence that Ferguson was prejudiced by them. The court noted, in particular, that the State allowed white jurors to be empaneled even though they expressed objections to the death penalty but struck black jurors who had no such qualms.
FN42. The court made no findings about Batson's potential retroactivity nor about whether his counsel was ineffective for not objecting to the challenges, although it may have implicitly rejected the latter claim.

Batson is not retroactively applicable to defendants whose convictions and direct appeals became final before the Supreme Court issued Batson. See Baldwin v. Johnson, 152 F.3d 1304, 1315 n. 10 (11th Cir.1998); Jackson v. Herring, 42 F.3d 1350, 1356 (11th Cir.1992). Ferguson contends that we should apply a different standard here because the Supreme Court has never explicitly stated that Batson does not apply retroactively in capital proceedings. However, there appear to be no cases in which courts have permitted such a retroactive application. In fact, in the case Ferguson references for the notion that the Supreme Court has not ruled on the issue, Williams v. Chrans, 945 F.2d 926 (7th Cir.1991), the Seventh Circuit found that Batson did not establish a new rule under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and thus would not apply retroactively in capital decisions. See Williams, 945 F.2d at 946.

Since Batson does not apply to Ferguson's peremptory challenge argument, we review the issue under the standards established in Swain. See Baldwin, 152 F.3d at 1315 n. 10. To state a claim under Swain, a habeas petitioner must show more than that the prosecutor deliberately used peremptory strikes to remove African-Americans from the jury; rather, he has to “demonstrate that the prosecutor, over time, systematically excluded blacks from serving on petit juries.” Id. at 1315. Prosecutors are presumed to have utilized their strikes in a fair and impartial manner. See Jackson, 42 F.3d at 1356. A petitioner can overcome this presumption by presenting evidence that would “manifestly show an intent on the part of the prosecutor to disenfranchise blacks from traverse juries in criminal trials,” including statistical evidence or testimony from those who have witnessed the pattern of systematic exclusion. Id.
As a preliminary note, the actual racial composition of the jury at both trials is unclear. Since none of the attorneys at either trial could remember the racial makeup of the jury, the principal evidence comes from testimony at the 3.850 evidentiary hearing of a law student, Chad Roberts, who compared the names of members of the jury pool to voter registration records to determine the race of those in the pool. Roberts stated that, based on his research, all twelve of the jurors and both alternates in the Carol City trial were white, that four of the twenty-nine other members of the jury pool were definitely black, and that three of those four were peremptorily challenged by the State even though they had no objection to the death penalty. He also determined that the twelve jurors and two alternates in the Hialeah trial were white, that six of the thirty-six other jury pool members were definitely black, and that five of those six were peremptorily challenged by the State.FN43 Four of those five struck pool members had no objection to the imposition of the death penalty, although eight of the impaneled jury members stated that they had such objections.
FN43. There was one other peremptorily-challenged member of the jury pool who Roberts thought was likely black, though he could make no definitive finding.

Assuming that the juries were as Roberts testified, Ferguson has not provided any evidence of systematic exclusion by the prosecutor in both cases, Robert Kaye. At the 3.850 proceedings, Ferguson called John McGuirk, who practiced as a criminal defense attorney in the late 1970s and early 1980s. McGuirk testified that he believed state attorneys at the time were “very conscious of the race of the juror” depending on the type of case and that he experienced some situations in which a prosecutor appeared to be making peremptory challenges based on race. App. NN at 2910-11. He also stated that he made such objections at the time, that he could think of no reason why a defense attorney would not make such an objection if the State appeared to be using race-based peremptory challenges, and that he believed excluding blacks from the jury could affect the outcome of the trial. However, McGuirk also testified that he did not believe that the prosecutor in Ferguson's trials systematically excluded black jurors and noted that state attorneys had the same interest in the race of the jurors as any trial lawyer would have had. Additionally, when Kaye testified at the 3.850 hearing, he denied having struck jurors because of their race and stated that he would not have done so for fear of having the verdict attacked on the basis of the racial makeup of the jury. FN44 All of this evidence, taken together, is insufficient to show or even strongly suggest that Kaye systematically struck jurors based on their race. Ferguson thus has not established that a Swain violation occurred. Furthermore, since there was no Swain or Batson violation, Ferguson's trial counsel could not be ineffective for failing to object to the challenges.
FN44. At the 3.850 hearing, Kaye could not recall why he peremptorily struck particular members of the jury panel in the Hialeah case when questioned about it.

We likewise find that Ferguson is not entitled to an evidentiary hearing on the issue. Ferguson asserts that we should grant such a hearing because he has provided strong evidence of discriminatory practices even though the circuit court in the 3.850 proceedings denied his request for discovery on the issue. However, this situation does not trigger the district court's duty to hold an evidentiary hearing. See Kelley, 377 F.3d at 1334. The district court therefore had the discretion to grant or deny the request, and there appears to be no basis for finding that it abused this discretion. See id. at 1333. Though the state court denied his request for discovery, it did so after it had already struck the Batson portion of his claim. Furthermore, there was a subsequent evidentiary hearing during those proceedings, at which Ferguson presented evidence on a range of topics, including the peremptory challenges. Ferguson thus has had ample opportunity to present evidence on the issue. We therefore conclude that the district court correctly denied Ferguson's habeas claim with respect to this issue and that it did not abuse its discretion in denying an evidentiary hearing.

I. Ex Parte Contacts During Post-Conviction Proceedings

Ferguson asserts that he did not receive full and fair state post-conviction proceedings because of ex parte contacts between the prosecutor and the post-conviction judge. He requests that we either hold a new federal court hearing in which no deference would be given to the state courts' findings of fact or, in the alternative, that we permit an evidentiary hearing to investigate the nature and extent of these ex parte contacts.
In January 1988, Ferguson's counsel learned from a state attorney that there had been ex parte communications between state counsel and Judge Friedman, the judge initially assigned to Ferguson's 3.850 motion, allegedly regarding the rescheduling of Ferguson's psychiatric evaluations. At a 19 May 1988 hearing before Judge Snyder, to whom the case had been reassigned from Judge Friedman, Ferguson's counsel complained about these communications. Judge Snyder stated that he would be open to ex parte communications if they would help expedite the scheduling of the examinations and that he would inform Ferguson's counsel about any such communications immediately after they occurred.FN45 Shortly thereafter, there was an ex parte contact between the State and Judge Snyder, allegedly about scheduling issues, about which Ferguson's counsel was informed promptly. On a 26 May 1988 conference call between the parties and Judge Snyder, Ferguson's counsel indicated that he believed that such contacts were improper and violated Ferguson's due process and Sixth Amendment rights.
FN45. In particular, Judge Snyder stated to the state attorney,
I am not worried about Mr. Prettyman [Ferguson's counsel] saying you [the state attorney] can't talk to me. You want something done that I have ordered you to do and you want my help in doing it, just call me, okay? He [Mr. Prettyman] doesn't like it, that's okay. I never worry about ex parte because I don't ex parte anybody. If there is anything that ever has to be done, Mr. Prettyman, you'll be notified immediately. But, I am not going to let that stand in the way to have an entire hearing and bring a lawyer in from Washington and we still haven't accomplished anything. App. NN at 1030-31.

On 23 February 1989, Judge Snyder denied Ferguson's motion to stay the 3.850 proceedings due to Ferguson's purported incompetency. On 22 March 1989, Ferguson's counsel filed a motion requesting that Judge Snyder disqualify himself from the proceedings because the ex parte contacts made the judge unable to be impartial or maintain the appearance of impartiality. The circuit court denied this motion, which it found to be legally insufficient for three reasons: (1) it did not comply with the technical requirements of Florida Statute 38.10 and Florida Rule of Criminal Procedure 3.230; (2) it was untimely and intended solely to delay the implementation of an adverse ruling; and (3) it did not set forth a sufficient factual basis for a well-founded belief that the court would be prejudiced against Ferguson. Ferguson's counsel subsequently sought a writ of prohibition with the Florida Supreme Court, which the court summarily denied.FN46 He then filed a petition for a writ of certiorari with the United States Supreme Court, which the Court denied.
FN46. The district court's opinion in the federal habeas proceedings mentions an ex parte phone call Judge Snyder made to Ferguson's counsel at some point in time subsequent to the Florida Supreme Court's denial of the writ. The parties do not reference this in the briefs, and, since it did not involve communications with opposing counsel, it likely would not have caused Ferguson any prejudice.

The district court denied Ferguson's claim that the ex parte communications deprived him of a full and fair hearing. The court treated this issue as an argument that the factual findings of the circuit court in the 3.850 proceedings were not entitled to a presumption of correctness. It noted that the circuit court had asserted that the ex parte communications solely addressed scheduling issues, and found that there was no evidence in the record either to contradict this assertion or to suggest that the circuit court's factual findings had been affected by the ex parte communications. As a result, the district court concluded that the circuit court's factual findings were entitled to a presumption of correctness.
Although the district court did not address the issue explicitly, this claim may be subject to a procedural bar. The circuit court's denial of the motion to recuse was based on at least one state procedural ground, the untimely filing of the motion, in addition to the more substantive ground of failing to show a factual basis for fear of prejudice due to the contacts. FN47 For the purposes of a possible procedural bar, this reasoning would be controlling since the Florida Supreme Court summarily denied the petition, and we treat such summary denials as implicitly accepting both the judgment and the rationale of the trial court. See Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir.1990) (noting that “the clear inference to be drawn from the appellate court's per curiam affirmance of the trial court's decision explicitly based on procedural default is that the court accepted not only the judgment but the reasoning of the trial court”). In this case, the circuit court's rationale is couched in the alternative, so we can and should apply the timeliness procedural bar if it was correctly applied. See Alderman, 22 F.3d at 1549.
FN47. The other basis for denying the claim, the failure to file affidavits with the motion, as required under Fla. R.Crim. P. 3.230, also is arguably procedural and thus could bar Ferguson's claim. The State does not discuss this rationale, however, and Ferguson likely has shown cause for the default-that he did not have first-hand knowledge of the contents of the ex parte contacts and thus could not provide affidavits-as well as resulting prejudice, i.e., that his claim was barred as a result of this failure. Furthermore, as discussed infra, Rule 1.432 of the Florida Rules of Civil Procedure likely applies here instead and it has no affidavit requirement.

We thus must determine whether the procedural bar constitutes an adequate and independent state ground. See id. In this case, Ferguson's counsel brought the original motion to recuse pursuant to Florida Rule of Criminal Procedure 3.230 and Florida Statute § 38.10. Since Florida courts treat 3.850 proceedings as civil actions, Ferguson probably should have cited Rule 1.432 of the Florida Rules of Civil Procedure, which governs disqualification of judges in civil cases, rather than Rule 3.230.FN48 See State v. White, 470 So.2d 1377, 1378 (Fla.1985) (describing 3.850 motions as civil actions). In any event, the relevant timeliness standards for all three of these provisions were essentially the same at the time the motion was filed, so this does not affect our analysis.FN49 Neither Rule 3.230 nor Florida Statute 38.10 discussed timeliness for a post-conviction disqualification motion. The only time bar mentioned in the versions of those provisions then in effect was Rule 3.230's requirement that the motion be filed “no less than 10 days before the time the case is called for trial unless good cause is shown for failure to so file within such time.”FN50 Fla. R.Crim. P. 3.230(c) (1989 ed.); see Fla. Stat. § 38.10. The applicable version of Rule 1.432, on the other hand, required the movant to file the motion “within a reasonable time after discovery of the facts constituting grounds for disqualification.” Fla. R. Civ. P. 1.432(c) (1989 ed.). In addition to this statutory guidance, Florida courts have deemed a motion for recusal to be untimely if the moving party waits to file the motion until after it has suffered an adverse ruling, unless the party can show good cause for the delay. See Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986).

FN48. The State raised this issue in its opposition to the motion; however, the circuit court did not address it and instead analyzed the issue under Rule 3.230. The Florida Supreme Court has referenced Rule 3.230 in one case involving a motion to disqualify a post-conviction judge; however, it did so in passing and without any discussion of whether it should be applied. See Suarez v. Dugger, 527 So.2d 190, 192 (Fla.1988) (per curiam).
FN49. Both Rule 1.432 and Rule 3.230 have now been replaced by Rule 2.330 of the Florida Rules of Judicial Administration, which requires motions to disqualify to be filed “within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.” Fla. R. Jud. Admin. 2.330 (2009).
FN50. The Florida Supreme Court, after the repeal of Rule 3.230, commented in passing that the rule “required that a motion to disqualify be made within ten days after discovery of the facts forming the basis for the motion.” Schwab v. State, 814 So.2d 402, 407 n. 6 (Fla.2002) (per curiam). However, we can find no cases supporting that interpretation while the rule was still in effect.

The first two prongs of the adequate and independent state grounds test have been met here. The last state court to render judgment on the issue clearly and expressly invoked state procedural grounds to resolve the claim. See Judd, 250 F.3d at 1313. Additionally, that court's decision rested solidly on state law grounds, without any federal issues coming into play. See id. The only relevant question therefore is whether the procedural bar was “applied in an arbitrary or unprecedented fashion.” Id.

In this case, Ferguson's counsel was aware of the ex parte contacts as early as January 1988 yet failed to file the motion seeking disqualification until more than a year later. Furthermore, in that motion he admitted that he decided to file the motion only after suffering an adverse ruling on the motion to stay. Accordingly, the motion would be untimely under Florida law unless Ferguson can show good cause for the delay in filing. See Fischer, 497 So.2d at 243. Ferguson asserts that this delay was acceptable because his counsel detected Judge Snyder's potential bias only when that ruling came out. However, this contention is belied by the fact that his counsel had objected on multiple prior occasions to the ex parte contacts but did not file a motion in those instances. In light of this background, the decision to wait until after the adverse ruling appears to be the kind of delaying tactic that Florida courts have frowned upon.FN51 See id. at 242 (noting that a recusal motion was “designed to frustrate the process by which petitioner suffered an adverse ruling”); see also Marcotte v. Gloeckner, 679 So.2d 1225, 1226 (Fla.Dist.Ct.App.1996) (per curiam) (deeming timely a recusal motion filed after an adverse ruling where the underlying facts were discovered only after that ruling). Given this precedent, there is no indication that the circuit court arbitrarily applied the procedural bar. See Judd, 250 F.3d at 1313. Since Ferguson has not alleged cause or prejudice for the procedural default (other than the contention that the procedural rule was not regularly followed) nor does there appear to be any fundamental miscarriage of justice, we cannot hear the claim. See Zeigler, 345 F.3d at 1304. The district court thus correctly denied Ferguson's habeas claim with respect to this issue.FN52

FN51. As the circuit court noted, this delaying intent also is evidenced by the fact that Ferguson's counsel sought to have all prior orders by the circuit court vacated in addition to having the judge recuse himself.
FN52. Additionally, even if the claim had not been procedurally defaulted, it would fail. Because Ferguson has not alleged any actual bias, he has not established a federal violation, and we cannot review his purely state law claim. See Hendrix, 527 F.3d at 1153-54. Furthermore, as a matter of legal ethics, “it is well-established that an ex parte communication which does not concern the merits of the case is permissible.” Drobny v. Commissioner, 113 F.3d 670, 680 (7th Cir.1997).

J. Issues Relating to Ferguson's Competency

The parties raise three issues with respect to Ferguson's competency and right to be competent during the various habeas and post-conviction proceedings. Ferguson appeals the district court's determination that he was competent to proceed with his federal habeas claim as well as its dismissal of his federal habeas claim asserting a due process violation for holding the 3.850 proceedings despite his alleged incompetency.FN53 The State cross-appeals the district court's decision to hold an evidentiary hearing on the question of competency.
FN53. Ferguson's statement of issues mentions only the district court's violating his right not to proceed while incompetent, which seems to refer to that court's decision finding him competent to proceed with the federal habeas claim. However, the body of his initial brief discusses due process violations with respect to his competency during the 3.850 proceedings.

1. Competency to Proceed with 3.850 Post-Conviction Claim

Ferguson contends that he is entitled to a de novo evidentiary hearing because the 3.850 proceedings were held while he was incompetent. He asserts that the district court erred in finding both that he had no federal constitutional right to be competent during those proceedings and that the 3.850 court's competency determination was supported by the record.
The circuit court held three days of evidentiary hearings in August and October 1988 on the question of competency. The court subsequently issued an order finding Ferguson competent and denying his motion to stay the proceedings because of his incompetency. The Florida Supreme Court initially issued a summary denial of Ferguson's appeal related to this decision. See Ferguson IV, 593 So.2d at 513. The court had the opportunity to reexamine this evidence in greater depth in a subsequent, post- Carter appeal. After determining that Carter applied retroactively, the court looked at whether the evidence supported the circuit court's competency findings. It recounted the evidence presented at the hearing, essentially agreeing with the circuit court's descriptions, acknowledged that the evidence regarding Ferguson's competency was conflicting, and found that there was adequate support for the circuit court to reject the opinions of those doctors finding Ferguson incompetent. As a result, the court concluded that the circuit court had not abused its discretion in denying the motion to stay.

Even if Ferguson had a federal due process right to be competent during the 3.850 proceedings,FN54 these competency findings are entitled to a presumption of correctness, which we may ignore “only if the petitioner shows by clear and convincing evidence that the state court's determination was not fairly supported by the record.” Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir.2003) (quotation marks and citation omitted); see Hauser ex rel. Crawford v. Moore, 223 F.3d 1316, 1323 (11th Cir.2000) (per curiam). “This deference requires that [we] more than simply disagree with the state court before rejecting its factual determinations. Instead, [we] must conclude that the state court's findings lacked even fair support in the record.” Turner, 339 F.3d at 1273 (quotation marks and citation omitted). After carefully examining the record from the competency hearing, we find that the evidence fairly supported the finding that Ferguson was competent to proceed with his 3.850 claim. Accordingly, we conclude that the district court properly denied both Ferguson's request for an evidentiary hearing and his habeas claim with respect to this issue.

FN54. There is reason to doubt that such a right exists. In Carter, the Florida Supreme Court found that there was a right to be competent during 3.850 proceedings. See Carter, 706 So.2d at 875. The court did not base its decision on an express constitutional ground; however, in Ferguson VI it noted that Carter reflected “considerations of due process, considerations which have previously guided this Court's hand in the postconviction arena” and cited cases in which it had referenced Fifth Amendment due process concerns. See Ferguson VI, 789 So.2d at 311. That statement notwithstanding, the right to competency appears to stem principally from the right to collateral counsel under Florida law. See Carter, 706 So.2d at 875 (noting that “the right to collateral counsel, as well as the postconviction proceedings themselves, would be practically meaningless” if the petitioner was not competent to assist counsel). As the district court noted, federal courts generally have rejected attempts to make a federal due process claim based on ineffective assistance of state post-conviction counsel. See, e.g., Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir.2002).

2. Competency to Proceed with Federal Habeas Claim

Ferguson asserts that the district court's determination that he was competent to proceed with his federal habeas claim was clearly erroneous because the evidence established that his paranoid schizophrenia prevented him from providing full assistance to his counsel during the federal habeas proceedings. Since we have not reviewed a habeas competency finding before, we have not had occasion to address the relevant standards of review. We generally review a district court's determinations that a defendant is competent to stand trial for clear error, and the parties agree that the same standard of review should apply here. See United States v. Hogan, 986 F.2d 1364, 1372 (11th Cir.1993) (using “clearly erroneous standard” to evaluate finding that petitioner was competent to stand trial). The applicable competency standard is whether the petitioner has both “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as factual understanding of the proceedings against him.” Moore v. Campbell, 344 F.3d 1313, 1321 (11th Cir.2003) (per curiam) (quotation marks and citation omitted).

After holding a competency hearing, the district court found that there was credible evidence to show that Ferguson at one time suffered from a mental disorder that had symptoms associated with paranoid schizophrenia and that, since 1994, his mental health has improved so as to make him “no longer a disruptive member of his prison environment.” R4-107 at 15. It also found that his disorder was in remission and that he was malingering or exaggerating his symptoms. See id. The court further found that Ferguson had the “mental competency, clarity of thought, directness of speech, and motivation to advance his interests and objectives when faced with a variety of adverse circumstances.” Id. at 15, 17. The court made a number of other factual findings including that the totality of his test results supported the conclusion that he was “consciously reporting symptoms of mental illness that he [was] not presently experiencing” and that his unwillingness to cooperate with his counsel was based on a desire to avoid punishment. Id. at 17, 20. Based on all of this, the court concluded that Ferguson “ha[d] sufficient present ability to consult with counsel with a reasonable degree of rational understanding-and ha[d] a rational as well as factual understanding of the proceedings against him.” Id. at 21-23.

After thoroughly reviewing the transcripts and evidence presented at the evidentiary hearing, we find that there was ample evidence to support the district court's findings. Accordingly, assuming arguendo that there is a federal right to be competent during federal habeas proceedings,FN55 we conclude the district court did not clearly err in deeming Ferguson competent to proceed with his federal habeas petition and did not abuse its discretion in denying his motion to stay. See American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519, 1525 (11th Cir.1984) (noting that a “motion to stay is directed to the district court's sound discretion”). In light of this conclusion, we need not address the State's cross-appeal regarding whether the district court improperly granted an evidentiary hearing on the issue.
FN55. The Ninth Circuit has found that there is a statutory right to be competent; however, the other circuits to have discussed the issue have assumed, without deciding, that such a right exists and resolved the competency issue on other grounds. See Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 807-17 (9th Cir.2003); see also Paul v. United States, 534 F.3d 832, 845-48 (8th Cir.2008); Holmes v. Buss, 506 F.3d 576, 578-79 (7th Cir.2007).

III. CONCLUSION

Ferguson filed this appeal seeking federal habeas relief with respect to nine different claims in his habeas petition. He also appeals the district court's order denying his motion to stay the proceedings based on his alleged incompetency. The State cross-appeals the district court's decision to hold an evidentiary hearing on the issue of Ferguson's competency. We hold that Ferguson was not entitled to habeas relief on any of his claims. Furthermore, insomuch as the district court did not clearly err in finding Ferguson competent to proceed with his habeas petition and did not abuse its discretion in denying his motion to stay the federal habeas proceedings, we need not consider the rationale for the State's cross-appeal. Accordingly, we AFFIRM the district court's denial of Ferguson's habeas petition and his motion to stay the habeas proceedings. AFFIRMED.